CONSUMER CONSUMER PROTECTION IN THE PROTECTION IN THE

EUEUMarko Baretić, Ph.DMarko Baretić, Ph.D

Civil Law DepartmentCivil Law Department

Faculty of Law in ZagrebFaculty of Law in Zagreb

OUTLINE OF THE COURSEOUTLINE OF THE COURSE Introduction to the Consumer ProtectionIntroduction to the Consumer Protection

• DevelopmentDevelopment• Main sourcesMain sources• Main principlesMain principles• Basic features Basic features

Market regulation Market regulation • Product safetyProduct safety• Regulation of trade practices Regulation of trade practices

Contract Law issuesContract Law issues• General part (unfair contract terms, specific techniques of conclusion of General part (unfair contract terms, specific techniques of conclusion of

cotract,warenties and associated guaranties)cotract,warenties and associated guaranties)• Specific contracts (consumer credit, turistic productsSpecific contracts (consumer credit, turistic products))

Tort Law issuesTort Law issues• Liability for defective productsLiability for defective products

Procedural LawProcedural Law• Protection of collective interests of consumersProtection of collective interests of consumers• Alternative disputes resolution systemsAlternative disputes resolution systems

CONSUMER PROTECTION IN THE CONSUMER PROTECTION IN THE EUEU

Consumer protection policy develops Consumer protection policy develops systematically over the last systematically over the last 440 years0 years• comprises of numerous measures aimed comprises of numerous measures aimed

at enhancing the position of consumer at enhancing the position of consumer at the single European marketat the single European market

• Consumer protection law – one of the Consumer protection law – one of the most important elements of the most important elements of the Consumer protection policyConsumer protection policy

CONSTITUTIONAL BASIS OF THE CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTIONCONSUMER PROTECTION

The Treaty on establishing the The Treaty on establishing the European Economic Community European Economic Community (Rome Treaty)(Rome Treaty)• Incidental reference to consumers in the Incidental reference to consumers in the

context of agricultural policy and context of agricultural policy and competition policycompetition policy

CONSTITUTIONAL BASIS OF THE CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTIONCONSUMER PROTECTION

Single European Act (1987)Single European Act (1987)• No major changes No major changes • Inclusion of the Article 100a – new, Inclusion of the Article 100a – new,

simplified decision making processsimplified decision making process

CONSTITUTIONAL BASIS OF THE CONSTITUTIONAL BASIS OF THE CONSUMER PROTECTIONCONSUMER PROTECTION

Treaty on the European Union (1993)Treaty on the European Union (1993)• Separate heading of the Treaty (XI) and Separate heading of the Treaty (XI) and

separate article (129a)separate article (129a) on on consumer consumer protectionprotection

• Consumer protection becomes an Consumer protection becomes an official policy of the EUofficial policy of the EU

AMSTERDAM TREATYAMSTERDAM TREATY

Renumbering of the TreatyRenumbering of the Treaty Article 129a becomes Article 153Article 129a becomes Article 153 No substantial changesNo substantial changes Explicit mentioning of the Explicit mentioning of the

“horizontal” nature of consumer “horizontal” nature of consumer protection policyprotection policy

NICE TREATYNICE TREATY

No changes in comparison to the No changes in comparison to the Amsterdam TreatyAmsterdam Treaty

LISBON TREATYLISBON TREATY

Treaty on European Union and the Treaty on European Union and the Treaty on the Functioning of the Treaty on the Functioning of the European Union European Union

Article 12Article 12 TFEU– consumer TFEU– consumer protection requirements shall be protection requirements shall be taken into account in defining and taken into account in defining and implementing other Union policies implementing other Union policies and activitiesand activities

Article 169Article 169 TFEU (ex Article 153 of TFEU (ex Article 153 of the Treaty on Establishing the EC)the Treaty on Establishing the EC)

Article 169 TFEU Article 169 TFEU

1.1. In order to promote the interests of consumers In order to promote the interests of consumers and to ensure a high level of consumer and to ensure a high level of consumer protection, the Union shall contribute to protection, the Union shall contribute to protecting the health, safety and economic protecting the health, safety and economic interests of consumers, as well as to promoting interests of consumers, as well as to promoting their right to information, education and to their right to information, education and to organise themselves in order to safeguard their organise themselves in order to safeguard their interests.interests.

2. The Union shall contribute to the attainment of 2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through:the objectives referred to in paragraph 1 through:(a) measures adopted pursuant to Article 114 in the (a) measures adopted pursuant to Article 114 in the

context of the completion of the internal market;context of the completion of the internal market;(b) measures which support, supplement and monitor the (b) measures which support, supplement and monitor the

policy pursued by the Member States.policy pursued by the Member States.

Article 169 TFEUArticle 169 TFEU

3. 3. The European Parliament and the Council, acting The European Parliament and the Council, acting in accordance with the ordinary legislative in accordance with the ordinary legislative procedure and after consulting the Economic and procedure and after consulting the Economic and Social Committee, shall adopt the measures Social Committee, shall adopt the measures referred to in paragraph 2(b).referred to in paragraph 2(b).

4. Measures adopted pursuant to paragraph 3 shall 4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining not prevent any Member State from maintaining or introducing more stringent protective or introducing more stringent protective measures. Such measures must be compatible measures. Such measures must be compatible with the Treaties. The Commission shall be with the Treaties. The Commission shall be notified of them. notified of them.

CHARACTERISTICS OF THE CHARACTERISTICS OF THE CONSUMER PROTECTION POLICYCONSUMER PROTECTION POLICY

Aimed at protection of basic consumer rights: Aimed at protection of basic consumer rights: health, economic interests, information, health, economic interests, information, education, representationeducation, representation

Development within the completion of the Development within the completion of the internal market (indirect policy) internal market (indirect policy)

An area of shared competence between the EU An area of shared competence between the EU and the MS’sand the MS’s• The importance of the principle of subsidiarity The importance of the principle of subsidiarity

and proportionality and proportionality Concept of minimum protection (minimum Concept of minimum protection (minimum

harmonisation)harmonisation)

DEVELOPMENT OF THE DEVELOPMENT OF THE CONSUMER PROTECTICONSUMER PROTECTIOON LAWN LAW

Indirect development (harmonization Indirect development (harmonization of national laws) of national laws)

““soft law” initiativessoft law” initiatives ““negative law”negative law”

INDIRECT POLICYINDIRECT POLICY

Development of the consumer protection Development of the consumer protection law on the basis of Article 100 of the Rome law on the basis of Article 100 of the Rome Treaty through the “the approximation of Treaty through the “the approximation of the provisions laid down by law, regulation the provisions laid down by law, regulation or administrative action in Member States or administrative action in Member States which have as their object the establishing which have as their object the establishing and functioning of the internal market” and functioning of the internal market”

Mid 70es of the 20th centuryMid 70es of the 20th century After the completion of the transitional After the completion of the transitional

period and establishing of the internal period and establishing of the internal market, the interest shifts to social issues, market, the interest shifts to social issues, like consumer protectionlike consumer protection

SOFT LAWSOFT LAW

Development through resolutions – Development through resolutions – non-binding rulesnon-binding rules

Although non-binding, the Although non-binding, the importance of the resolutions follows importance of the resolutions follows from the fact:from the fact:• they express political position of the they express political position of the

institutions of the EUinstitutions of the EU• the CJEU often invokes resolutions as if the CJEU often invokes resolutions as if

they were binding instruments they were binding instruments

SOFT LAWSOFT LAW

Council Resolution on preliminary Council Resolution on preliminary programme for a consumer protection and programme for a consumer protection and information policy (1975)information policy (1975)

Basic consumer rights enumerated:Basic consumer rights enumerated:• the right to protection of health and safetythe right to protection of health and safety• the right to protection of economic intereststhe right to protection of economic interests• the right of redressthe right of redress• the right to information and educationthe right to information and education• the right of representation (the right to be the right of representation (the right to be

heard)heard)

SOFT LAWSOFT LAW

First resolution followed by the Resolutions of First resolution followed by the Resolutions of 1981, 1986, 1989, 19921981, 1986, 1989, 1992

First Action Plan launched in 1990 and followed First Action Plan launched in 1990 and followed by AP’s 1991, 1993, 1998by AP’s 1991, 1993, 1998

Commission’s Consumer Policy Strategy for 2002-Commission’s Consumer Policy Strategy for 2002-2006 followed by Council’s Resolution of 20022006 followed by Council’s Resolution of 2002

Commission’s EC Consumer Policy Strategy 2007-Commission’s EC Consumer Policy Strategy 2007-20132013

The Consumer Programme 2014-2020The Consumer Programme 2014-2020• Real value for moneyReal value for money

NEGATIVE LAWNEGATIVE LAW Negative law – law that forbids action Negative law – law that forbids action

hostile to cross-boarder tradehostile to cross-boarder trade Removal of trade barriers (market Removal of trade barriers (market

integration) as a form of indirect consumer integration) as a form of indirect consumer policypolicy

Impact on consumers twoImpact on consumers two--foldedfolded• Removal of national measures (legislation) if Removal of national measures (legislation) if

detrimental to consumer’s choicedetrimental to consumer’s choice• Removal of national measures (legislation) Removal of national measures (legislation)

aimed at protection of (domestic) consumer if aimed at protection of (domestic) consumer if they impede cross-boarder tradethey impede cross-boarder trade

Development through the court practice Development through the court practice

NEGATIVE LAWNEGATIVE LAW Removal of national measures detrimental to Removal of national measures detrimental to

consumer’s choiceconsumer’s choice• C 17C 170/0/78 Commission v. United Kingdom (British system 78 Commission v. United Kingdom (British system

of taxing alcoholic beverages)of taxing alcoholic beverages)• C 178/84 Commission v. Germany (German rules on C 178/84 Commission v. Germany (German rules on

beer-making techniques)beer-making techniques) Removal of national measures aimed at Removal of national measures aimed at

protection of (domestic) consumersprotection of (domestic) consumers• C-12C-1200/78 Rewe Zentrale v. Bundesmonopolverwaltung /78 Rewe Zentrale v. Bundesmonopolverwaltung

für Branntwein (Casis de Dijon) (minimum alcohol für Branntwein (Casis de Dijon) (minimum alcohol requirement)requirement)

• Case 407/85 Drei Glocken v. USL Centro-Sud (Italian Case 407/85 Drei Glocken v. USL Centro-Sud (Italian pasta)pasta)

PRESENT STATE OF PLAYPRESENT STATE OF PLAY

Over 90 directives dealing with Over 90 directives dealing with consumer protection issuesconsumer protection issues

Since the CP represent a horizontal Since the CP represent a horizontal policy – many directives in other policy – many directives in other areas cover also CP issuesareas cover also CP issues

Strong influence on legal orders of Strong influence on legal orders of the MSthe MS

PRESENT STATE OF PLAYPRESENT STATE OF PLAY

Directives in the field of consumer Directives in the field of consumer protection regulate:protection regulate:• technical standards aimed at protection technical standards aimed at protection

of consumersof consumers• market conditions (especially market conditions (especially

advertising) advertising) • private law issues (especially contract private law issues (especially contract

law)law) indirect harmonisation of the private law indirect harmonisation of the private law

systems of the MSsystems of the MS

CONSUMER CONSUMER ACQUISACQUIS Directive 2001/95/EEC on general product Directive 2001/95/EEC on general product

safetysafety Directive 89/109/EEC on the approximation of Directive 89/109/EEC on the approximation of

the laws of the Member States relating to the laws of the Member States relating to materials and articles intended to come into materials and articles intended to come into contact with foodstuffscontact with foodstuffs

Directive 2000/13/EC on the approximation of Directive 2000/13/EC on the approximation of the laws of the Member States relating to the the laws of the Member States relating to the labelling, presentation and advertising of labelling, presentation and advertising of foodstufffoodstuff

Directive 98/6/EC on consumer protection in the Directive 98/6/EC on consumer protection in the indication of the prices of products offered to indication of the prices of products offered to consumersconsumers

CONSUMER CONSUMER ACQUISACQUIS

Directive 2006/114/EC Directive 2006/114/EC concerning misleading and concerning misleading and comparative advertisingcomparative advertising

Directive 2005/29/EC on unfair Directive 2005/29/EC on unfair commercial practicescommercial practices

CONSUMER CONSUMER ACQUISACQUIS Directive 85/577/EEC to protect the consumer in Directive 85/577/EEC to protect the consumer in

respect of contracts negotiated away from respect of contracts negotiated away from business premises business premises

Directive 90/314/EEC on package travel, Directive 90/314/EEC on package travel, package holidays and package tourspackage holidays and package tours

Directive 97/7/EC on the protection of Directive 97/7/EC on the protection of consumers in respect of distance contractsconsumers in respect of distance contracts

Directive 98/27/EC on injunctions for the Directive 98/27/EC on injunctions for the protection of consumers’ interestsprotection of consumers’ interests

CONSUMER CONSUMER ACQUISACQUIS Directive 93/13/EEC on unfair terms in consumer contractsDirective 93/13/EEC on unfair terms in consumer contracts Directive 1999/44/EC on certain aspects of the sale of consumer goods Directive 1999/44/EC on certain aspects of the sale of consumer goods

and associated guarantiesand associated guaranties Directive 85/374/EEC on the approximation of the laws, regulations and Directive 85/374/EEC on the approximation of the laws, regulations and

administrative provisions of the Member States concerning liability for administrative provisions of the Member States concerning liability for defective products (amended by the Directive 1999/34/EC).defective products (amended by the Directive 1999/34/EC).

Directive 2002/65/EC concerning the distance marketing of consumer Directive 2002/65/EC concerning the distance marketing of consumer financial servicesfinancial services

Directive 2008/48/EC on credit agreements for consumersDirective 2008/48/EC on credit agreements for consumers Directive 2008/122/EC on the protection of consumers in respect of Directive 2008/122/EC on the protection of consumers in respect of

certain aspects of timeshare, long-term holiday product, resale and certain aspects of timeshare, long-term holiday product, resale and exchange contractsexchange contracts

Directive Directive 20092009/2/222/EC on injunctions for the protection of consumers’ /EC on injunctions for the protection of consumers’ interests (codified version)interests (codified version)

Directive Directive 2011/83/EU 2011/83/EU on consumer rightson consumer rights Regulation 524/2013 on online dispute resolution for consumer disputesRegulation 524/2013 on online dispute resolution for consumer disputes Directive 2013/11/EU on alternative dispute resolution for consumer Directive 2013/11/EU on alternative dispute resolution for consumer

disputesdisputes

PRIVATE LAW ASPECTS OF PRIVATE LAW ASPECTS OF CONSUMER PROTECTIONCONSUMER PROTECTION

Through the directives in the field of Through the directives in the field of consumer protection, EU has consumer protection, EU has influenced both public law and influenced both public law and private law orders of the MS’sprivate law orders of the MS’s

The question of viability of The question of viability of public/private law divisionpublic/private law division

CONSUMER/TRADERCONSUMER/TRADER

Consumer -any natural person who acts Consumer -any natural person who acts on the market or concludes the contract on the market or concludes the contract for the purposes which are outside his for the purposes which are outside his business, trade or profession !!!!!!!!!business, trade or profession !!!!!!!!!

Trader – any natural or legal person who Trader – any natural or legal person who acts on the market or concludes the acts on the market or concludes the contract for the purposes relating to his contract for the purposes relating to his business, trade or profession!!!!!!!!business, trade or profession!!!!!!!!

CONSUMER CONTRACTCONSUMER CONTRACT

Business to Consumer (B2C)Business to Consumer (B2C) Business to Business (B2B)Business to Business (B2B) Consumer to Consumer (C2C)Consumer to Consumer (C2C)

CHARASTERISTICS OF THE CHARASTERISTICS OF THE CONSUMER PROTECTION LAWCONSUMER PROTECTION LAW

Not “European law”, but rather Not “European law”, but rather “harmonised” law of the MS’s“harmonised” law of the MS’s

Regulation based on “Regulation based on “rationae rationae personaepersonae” principle, rather than on ” principle, rather than on ““rationae materiaerationae materiae” principle” principle

VerticalVertical/horisontal/horisontal approach approach Significantly changed legal orders of Significantly changed legal orders of

the MS’sthe MS’s

CHARACTERISTICS OF THE CHARACTERISTICS OF THE CONSUMER PROTECTION LAWCONSUMER PROTECTION LAW

Information dutyInformation duty Right to withdrawRight to withdraw Protection of collective interests of consumersProtection of collective interests of consumers (Semi)strict nature of the consumer protection (Semi)strict nature of the consumer protection

rulesrules Wide range of essential elements of consumer Wide range of essential elements of consumer

contractcontract Special IPSpecial IPLL rules rules Burden of proofBurden of proof Concept of minimal protectionConcept of minimal protection Alternative dispute settlement systemsAlternative dispute settlement systems

INFORMATION DUTYINFORMATION DUTY

Information paradigm – “well Information paradigm – “well informed consumer shall be able to informed consumer shall be able to protect himself efficiently”protect himself efficiently”

Both in pre-contractual and post-Both in pre-contractual and post-contractual stagecontractual stage

WITHDRAWAL RIGHTWITHDRAWAL RIGHT

Right provided by Right provided by • Door-to-door DirectiveDoor-to-door Directive• Distance Sale DirectiveDistance Sale Directive• Distance Marketing of Financial Services Distance Marketing of Financial Services

DirectiveDirective• Timeshare DirectiveTimeshare Directive• Consumer Credit DirectiveConsumer Credit Directive• Consumer Rights DirectiveConsumer Rights Directive

COLLECTIVE CONSUMER COLLECTIVE CONSUMER PROTECTIONPROTECTION

Initially recognised only Initially recognised only inin few directives few directives Today Injunctions Directive extends this Today Injunctions Directive extends this

type of protection to overall consumer type of protection to overall consumer acquisacquis

Protection of diffuse, collective interests of Protection of diffuse, collective interests of the entire consumer populationthe entire consumer population

Collectivistic v. individualistic protectionCollectivistic v. individualistic protection Preventive protectionPreventive protection Dilemma – to be resolvedDilemma – to be resolved by the MS’s: by the MS’s:

court v. administrative protectioncourt v. administrative protection

LEGAL NATURE OF CONSUMER LEGAL NATURE OF CONSUMER PROTECTION RULESPROTECTION RULES

Not Not ius strictum ius strictum in a classical sensein a classical sense Rather (semi)strict rulesRather (semi)strict rules Possible to contract out these rules – Possible to contract out these rules –

but only in the interest of a but only in the interest of a consumerconsumer

Departure from the party autonomy Departure from the party autonomy principleprinciple

WIDE RANGE OF ESSENTIAL WIDE RANGE OF ESSENTIAL ELEMENTS IN CONSUMER ELEMENTS IN CONSUMER

CONTRACTCONTRACT Many directives provide wide range Many directives provide wide range

of essential elements in consumer of essential elements in consumer contractscontracts

The problem of rational choice of The problem of rational choice of essential elementsessential elements

SPECIAL IPL RULESSPECIAL IPL RULES

The consumer cannot be deprived of The consumer cannot be deprived of the protection provided for by law by the protection provided for by law by virtue of choice of lawvirtue of choice of law

This rule does not entirely excludes This rule does not entirely excludes the possibility of contracting in the possibility of contracting in choice of law clauseschoice of law clauses

BURDEN OF PROOFBURDEN OF PROOF

Burden of proof as to the existence/non-Burden of proof as to the existence/non-existence of certain facts shifted to the existence of certain facts shifted to the tradertrader

This rule contained within:This rule contained within:• Distance Sale DirectiveDistance Sale Directive• Distance Marketing of Financial Services Distance Marketing of Financial Services

DirectiveDirective• Unfair Commercial Practices DirectiveUnfair Commercial Practices Directive

ALTERNATIVE DISPUTE ALTERNATIVE DISPUTE SETLEMENTSETLEMENT

European Union supports and European Union supports and promotes alternative dispute promotes alternative dispute settlement systemssettlement systems

ADR Directive, ODR RegulationADR Directive, ODR Regulation Good examples:Good examples:

• MediationMediation• Ombutsmans in Nordic countriesOmbutsmans in Nordic countries• Office of Fair Trading in the UKOffice of Fair Trading in the UK

CHALLANGES TO THE CONSUMER CHALLANGES TO THE CONSUMER PROTECTION LAWPROTECTION LAW

Unsystematic approachUnsystematic approach InconsistencyInconsistency ““Black box” argumentBlack box” argument Non-harmonised legal orders of the MS’sNon-harmonised legal orders of the MS’s Obsolescence of the consumer Obsolescence of the consumer acquisacquis Complexity of the consumerComplexity of the consumer acquis acquis

UNSISTEMATIC APPROACHUNSISTEMATIC APPROACH

““Pointilistic” approach in making Pointilistic” approach in making consumer protection regulationconsumer protection regulation

Consumer protection Consumer protection acquisacquis not not based on common principlesbased on common principles

INCONSISTANCYINCONSISTANCY

Inconsistency on two levels:Inconsistency on two levels:• Within the same directiveWithin the same directive• between various directivesbetween various directives

INCONSISTENCYINCONSISTENCY

Different approaches/different Different approaches/different terminology in the same directiveterminology in the same directive

Simultaneous use of the term Simultaneous use of the term “indemnity” and “compensation” in “indemnity” and “compensation” in the same directivethe same directive

„„right of cancellation”, „right of right of cancellation”, „right of renunciation”, „right of withdrawal”renunciation”, „right of withdrawal”

INCONSISTENCYINCONSISTENCY Example: the definition of “consumer”Example: the definition of “consumer” consumer means any natural person who, in consumer means any natural person who, in

contracts covered by this Directive, is acting for contracts covered by this Directive, is acting for purposes which purposes which are outside his trade, are outside his trade, business or professionbusiness or profession (Unfair Terms in (Unfair Terms in Consumer Contracts Directive) Consumer Contracts Directive)

consumer means a natural person who, in consumer means a natural person who, in transactions covered by this Directive, is acting transactions covered by this Directive, is acting for purposes for purposes which can be regarded as which can be regarded as outside his trade or profession outside his trade or profession (Door to door (Door to door Directive)Directive)

consumer is a person who agrees to take travel consumer is a person who agrees to take travel package (Package Travel Directive)package (Package Travel Directive)

INCONSISTENCYINCONSISTENCY

Example of the definition of “trader”Example of the definition of “trader” Terms used: trader, seller, supplierTerms used: trader, seller, supplier supplier means any natural or legal person who, supplier means any natural or legal person who,

in contracts covered by this Directive, is in contracts covered by this Directive, is acting acting in his commercial or professional capacity in his commercial or professional capacity (Distance sale Directive)(Distance sale Directive)

seller or supplier means any natural or legal seller or supplier means any natural or legal person who, in contracts covered by this person who, in contracts covered by this Directive, is Directive, is acting for purposes relating to acting for purposes relating to his trade, business or professionhis trade, business or profession, whether , whether publicly owned or privately owned (Unfair Terms publicly owned or privately owned (Unfair Terms Directive)Directive)

INCONSISTENCYINCONSISTENCY

Different solutions for identical situationsDifferent solutions for identical situations Example: withdrawal period:Example: withdrawal period:

• 7 days (Door-to-door Directive)7 days (Door-to-door Directive)• 10 day (Timeshare Directive)10 day (Timeshare Directive)• 14 days (Distance Marketing of Financial 14 days (Distance Marketing of Financial

Services Directive)Services Directive) Problem of computation through “working Problem of computation through “working

days” (distance contracts) and “calendar days” (distance contracts) and “calendar days” (timeshare).days” (timeshare).

INCONSISTENCYINCONSISTENCY

In specific situations two EU In specific situations two EU instruments can be applicable which instruments can be applicable which produce conflicting results.produce conflicting results.

Example: Doorstep Selling Directive Example: Doorstep Selling Directive and Times and Timeshhare are DDirectiveirective

INCONSISTENCYINCONSISTENCY

The use of abstract legal terms such as The use of abstract legal terms such as “contract”, “damage”, “fulfilment/non-“contract”, “damage”, “fulfilment/non-fulfilment” which are not defined at all AT fulfilment” which are not defined at all AT THE European levelTHE European level

Certain terms defined in one directive, but Certain terms defined in one directive, but not in othersnot in others• Example: definition of damage in the Defective Products Example: definition of damage in the Defective Products

DirectiveDirective• The same term not defined in Package Travel DirectiveThe same term not defined in Package Travel Directive• The question of admissibility of analogyThe question of admissibility of analogy

INCONSISTENCYINCONSISTENCY

Inconsistency as a consequence of Inconsistency as a consequence of multiple language approachmultiple language approach

Example of Unfair Terms DirectiveExample of Unfair Terms Directive• Pre-formulated contractsPre-formulated contracts• Contrat d’ adhContrat d’ adhéésionsion• Contrato di adesioneContrato di adesione

““BLACK BOX” ARGUMENTBLACK BOX” ARGUMENT

The CJ EU, interpreting certain The CJ EU, interpreting certain directives, disregards particularities of directives, disregards particularities of the national legal systems of the MS’s the national legal systems of the MS’s and thus prejudice settled principles and thus prejudice settled principles of the national legal systemsof the national legal systems

Creating the rules of the directives, Creating the rules of the directives, EU bodies often introduce unknown EU bodies often introduce unknown (foreign) terms and institutes in (foreign) terms and institutes in national legal systemsnational legal systems

NON-HARMONISED LEGAL NON-HARMONISED LEGAL OREDERS OF THE MS’sOREDERS OF THE MS’s

Terms and institutes from the Directives Terms and institutes from the Directives differently interpreted from country to differently interpreted from country to countrycountry

Minimum harmonisation system Minimum harmonisation system problemproblem

When implementing a directive, When implementing a directive, national legislators maintain the national legislators maintain the existing national legislation in parallelexisting national legislation in parallel

OBSOLESCENCE OF THE OBSOLESCENCE OF THE CONSUMER CONSUMER ACQUISACQUIS

Directives in the field of consumer Directives in the field of consumer protection mainly from the eighties protection mainly from the eighties of the 20th century of the 20th century

No longer corresponding to the No longer corresponding to the demands of modern market (digital demands of modern market (digital technologies, innovative marketing technologies, innovative marketing techniques)techniques)

The need for amending the existing The need for amending the existing regulationregulation

COMPLEXITY OF THE EXISTING COMPLEXITY OF THE EXISTING CONSUMER CONSUMER ACQUISACQUIS

Text of certain directives extremely Text of certain directives extremely complicated and complex, and thus complicated and complex, and thus unintelligibleunintelligible

Example of the Unfair Commercial Example of the Unfair Commercial Practices DirectivePractices Directive

UNFAIR COMMERCIAL UNFAIR COMMERCIAL PRACTICE DIRECTIVEPRACTICE DIRECTIVE

Article 6Article 6 Misleading actionsMisleading actions 1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, 1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way,

including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:that he would not have taken otherwise:

(a) the existence or nature of the product;(a) the existence or nature of the product; (b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale (b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale

customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;features of tests or checks carried out on the product;

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any (c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage; (e) the need for a service, part, replacement or repair;(e) the need for a service, part, replacement or repair; (f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, (f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval,

affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions; (g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European (g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European

Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [8], or the Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [8], or the risks he may face.risks he may face.

2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and 2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:otherwise, and it involves:

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade (a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;names or other distinguishing marks of a competitor;

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, (b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:where:

(i) the commitment is not aspirational but is firm and is capable of being verified,(i) the commitment is not aspirational but is firm and is capable of being verified, andand (ii) the trader indicates in a commercial practice that he is bound by the code.(ii) the trader indicates in a commercial practice that he is bound by the code.

TIME OF CHANGESTIME OF CHANGES

Communication from the Commission Communication from the Commission to the European Parliament and the to the European Parliament and the Council – A More Coherent European Council – A More Coherent European Contract Law – An Action Plan (2003)Contract Law – An Action Plan (2003)

Green Paper on the Review of the Green Paper on the Review of the Consumer Acquis (2006-2007)Consumer Acquis (2006-2007)

PRESENT/FUTUREPRESENT/FUTURE

Necessity of creating a new Necessity of creating a new consumer consumer acquis acquis with the purpose ofwith the purpose of

Simplification of the regulationSimplification of the regulation Completion of the regulationCompletion of the regulation Harmonisation of the regulationHarmonisation of the regulation Modernisation of the regulationModernisation of the regulation

POSSIBLE DEVELOPMENT POSSIBLE DEVELOPMENT STRATEGIESSTRATEGIES

Three basic strategies proposed:Three basic strategies proposed:• Vertical approach – revision of the Vertical approach – revision of the

existing directivesexisting directives• Horizontal approach – creation of one of Horizontal approach – creation of one of

few umbrella instruments regulating few umbrella instruments regulating common features of the consumer common features of the consumer acquisacquis

• Mixed, horizontal-vertical approachMixed, horizontal-vertical approach

VERTICAL APPROACHVERTICAL APPROACH

Amendment of each directive with the aim Amendment of each directive with the aim of their modernisation and harmonisation of their modernisation and harmonisation with the current market demandswith the current market demands

Elimination of inconsistencies within Elimination of inconsistencies within particular directive and among different particular directive and among different directivesdirectives

Shortcomings: Shortcomings: • basic terms would still be defined within basic terms would still be defined within

particular directivesparticular directives• volume (number) of directives would not volume (number) of directives would not

diminishdiminish

HORIHORIZZONTAL APPROACHONTAL APPROACH

Regulation of common elements of the Regulation of common elements of the consumer consumer acquisacquis-a, such as terms -a, such as terms consumer, professional, withdrawal period, consumer, professional, withdrawal period, etc. would be extracted from the existing etc. would be extracted from the existing directives and provided for within unique directives and provided for within unique “instrument” in an systematic fashion“instrument” in an systematic fashion

Second part of horizontal “instrument” Second part of horizontal “instrument” would regulate sales contract, as most would regulate sales contract, as most common consumer contractcommon consumer contract

The application of a horizontal approach The application of a horizontal approach begun with Unfair Commercial Practices begun with Unfair Commercial Practices DirectiveDirective

HORIHORIZZONTAL APPROACHONTAL APPROACH

““Instrument” selectionInstrument” selection• directivedirective• rregulationegulation• recommendationrecommendation• ““common frame of reference”common frame of reference”

MIXED APPROACHMIXED APPROACH

Dominant horizontal approachDominant horizontal approach Vertical approach as an exception, in Vertical approach as an exception, in

certain segments of the marketcertain segments of the market

LEVEL OF HARMONISATIONLEVEL OF HARMONISATION

Unsatisfactory results of the existing Unsatisfactory results of the existing minimum harmonisation systemminimum harmonisation system

Suggested:Suggested:• maximum harmonisation systemmaximum harmonisation system• combination of minimum harmonisation combination of minimum harmonisation

system and mutual recognition clausesystem and mutual recognition clause

NEW DIRECTIVESNEW DIRECTIVES Directive 2005/29/EC on unfair commercial practiceDirective 2005/29/EC on unfair commercial practice Directive 2008/48/EC on credit agreements for Directive 2008/48/EC on credit agreements for

consumersconsumers Directive 2008/122/EC on the protection of Directive 2008/122/EC on the protection of

consumers in respect of certain aspects of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and timeshare, long-term holiday product, resale and exchange contractsexchange contracts

Directive Directive 2011/83/EU 2011/83/EU on consumer rightson consumer rights Regulation 524/2013 on online dispute resolution Regulation 524/2013 on online dispute resolution

for consumer disputesfor consumer disputes Directive 2013/11/EU on alternative dispute Directive 2013/11/EU on alternative dispute

resolution for consumer disputesresolution for consumer disputes Draft Regulation on a Common European SalesDraft Regulation on a Common European Sales Law Law

COMMON FRAME OF COMMON FRAME OF REFERENCEREFERENCE

Step forwardStep forward in creation of European contract lawin creation of European contract law Public “document” containing common principles, Public “document” containing common principles,

basic rules and terminology in the field of basic rules and terminology in the field of European contract lawEuropean contract law

PurposePurpose threefold:threefold:• Utilisation from the Commission in the process of the Utilisation from the Commission in the process of the

revision of the existing revision of the existing acquisacquis-a and creation of a new -a and creation of a new measuresmeasures

• Utilisation from the national legislators and courts in Utilisation from the national legislators and courts in order to achieve a higher degree of convergence order to achieve a higher degree of convergence

• Basis for possible optional instrumentBasis for possible optional instrument

COMMON FRAME OF COMMON FRAME OF REFERENCEREFERENCE

Drafting on the basis of:Drafting on the basis of:• rules from the existing national legal orders of rules from the existing national legal orders of

the MS’s which are common to all or majority the MS’s which are common to all or majority of MS’s or which represent best solutions in of MS’s or which represent best solutions in certain situationcertain situation

• findings of the national courtsfindings of the national courts• rules from the existing rules from the existing acquisacquis and international and international

instruments such as UN Convention on instruments such as UN Convention on international sale of goodsinternational sale of goods

INFLUENCE ON PRIVATE INFLUENCE ON PRIVATE LAW ORDERS OF THE MS’sLAW ORDERS OF THE MS’s

Admissibility of creation of the European Admissibility of creation of the European Civil CodeCivil Code

1989 Resolution of the European Parliament 1989 Resolution of the European Parliament on the activities for harmonisation oon the activities for harmonisation off the the private laws of the Member States private laws of the Member States

2001 Resolution of the European Parliament 2001 Resolution of the European Parliament on approximation of the civil and on approximation of the civil and commercial laws of the Member Statescommercial laws of the Member States

2001 Council Report on the need for 2001 Council Report on the need for convergence of the civil law orders of the convergence of the civil law orders of the MS’sMS’s

EUROPEAN CONTRACT LAWEUROPEAN CONTRACT LAW

Desirable result of the efforts of the EU bodiesDesirable result of the efforts of the EU bodies Based on Based on

• the common frame of referencethe common frame of reference• existing acquisexisting acquis

New optional instrumentNew optional instrument• Draft Regulation on a Common European Sales LawDraft Regulation on a Common European Sales Law

POSIBBLE OBSTACLESPOSIBBLE OBSTACLES

Claim that national civil law orders Claim that national civil law orders are part of the national identityare part of the national identity

Claim that there are no common Claim that there are no common principles to support new European principles to support new European civil lawcivil law

POSSIBLE PATHS IN POSSIBLE PATHS IN CREATING EUROPEAN CIVIL CREATING EUROPEAN CIVIL

CODECODE Institutional path most unlikely Institutional path most unlikely Suggested:Suggested:

• Crawling codificationCrawling codification• Competition between national legal Competition between national legal

systemssystems• Harmonisation of IPL’sHarmonisation of IPL’s• Creation of the European Contract Creation of the European Contract

LawLaw