HOW TO DEVELOP EU CONSUMER LAW?
A snapshot of weaknesses and basic points of a possible future reform
Tamas Dezso Czigler
Ghent University
21/05/2013
ABOUT THE TOPIC

Worked for major law firms like Baker & McKenzie
- need for simplified rules, fragmentation costs money

Made the peer review of an article written by Prof. Micklitz
(EUI Florence) - Social Justice and Access Justice in EU
Private Law
- EU consumer law moves into a fair system?

Stayed at the University of Aberdeen – was asked to move
into Scottish private International law instead
- Because topic is so „evident”?

Stayed in the US at Columbia and Fordham Universities:
- Our basic „values” can be questioned

European Law Institute (Why not? Let’s create another
institute... (R. Zimmermann)
- Evaluation of existing sources or creating useless new
THE MAIN POINTS TO
DEVELOP

FRAGMENTATION
- Substantive law and PIL must be checked together!

SYSTEM OF REMEDIES
- Are we sure we are fair?

Private International law aspects
- Rome I and the practice

Why not try other institutions instead?
- European consumer office, small claims court, class
action, effective procedural rules?
FRAGMENTATION
Levels

International
- Convention on the International Sale of Goods (CISG)
- Special conventions (eg. contracts of carriage)

EU level: numerous rules
- Directives
- Regulations
Essential need for restructuring consumer law

National provisions, e.g. in Belgium
- Act on Unfair Commercial Practices and Consumer Protection (AMPC)
(2010)
- Act on Consumer Credit
- Timeshare Act
- Civil Code
FRAGMENTATION
Substantive Law – time to unify
- Council Directive 86/653/EEC on to self-employed commercial agents
- Council Directive 93/7/EEC on the return of unlawfully removed cultural
objects
- Directive 96/71/EC on the posting of workers
- Regulation (EC) No 392/2009 on the liability of carriers of passengers by
sea
- Council Directive 85/374/EEC on liability for defective products
- Council Directive 85/577/EEC on contracts negotiated away from business
premises
- Council Directive 87/102/EEC on consumer credits
- Council Directive 93/13/EEC on unfair terms in consumer contracts
- Directive 97/7/EC on contracts.
- Directive 1999/44/EC on certain aspects of the sale of consumer goods and
associated guarantees
- Directive 2000/31/EC on electronic commerce
- Directive 2008/122/EC on timeshare, long-term holiday product, resale and
exchange contracts (new timeshare directive)
- Directive 2005/29/EC on unfair business-to-consumer commercial practices
FRAGMENTATION
Substantive Law

Directive 2011/83/EU on consumer rights
Firstly: Seven directives Proposal: four directives:
- Directive on unfair terms in consumer contracts
- Directive on distance contracts
- Directive on consumer sale of goods
- Directive on consumer contracts negotiated away from business premises.
Later: consumer sales and unfair terms were cut out, only two directives
were built in (+ a few general rules for consumer contracts):
- Directive on distance contracts
- Directive on consumer contracts negotiated away from business premises

Proposal for a regulation on a common European
sales law [COM (2011) 0635 final]
- optional tool - parties may choose its application
- general rules of contracting
!!!! MY SUGGESTION: LET’S BUILD THE PRESENT RULES INTO
ONE SOLE DIRECTIVE !!!!
FRAGMENTATION
Private international law

FIRST PROBLEM
- Rome I regulation AND substantive law directives containing
PIL provisions: chaos

SECOND PROBLEM
- CESL: sui generis choice
!!!! MY SUGGESTIONS:
1) LET’S BUILD ALL THE PRESENT RULES INTO ROME I
REGULATION
AND
2) CREATE THE BACKGROUND OF CESL IN ROME I
+
( 3) optional (jurisdiction): CLEAR THE CONNECTION WITH
ARBITRATION (SEE WEST TANKERS) )
SYSTEM OF REMEDIES
Are we fair enough?

EU
- Repair, price reduction – are they reasonable and useful?
- Canceling – withdrawal periods – is it reasonable?
- Fixed time for warranty
 US:
- No general, fixed time for warranties
- Repair, price reduction generally not applied
- Injunction (N/A): court order commanding or preventing an
action: Exceptional: if no plain, adequate, and complete
remedy is available and danger of an irreparable injury
- English Case: Lumley-Wagner case – negativ obl.
- Canceling: in case of substantial (essential) breach Magnusson - Moss Warranty Act (for consumers)
MY SUGGESTION: THINK THROUGH THE COMMON LAW APPROACH
PRIVATE INTERNATIONAL LAW
Art 6 Rome I regulation cannot be followed by the practice
Cross border sales:
-
In case the business is present in the consumer’s
country latter law has to be applied
eg. I buy an internet stick in Germany,
but Hungarian rules apply
-
In case the parties choose a different law, the choice
may not have a negative effect at the consumer
MY SUGGESTIONS
1) UNREALISTIC RULES, WE NEED TO THINK THEM OVER
2) NEED ROME 0 AS IT WAS SUGGESTED BY MPI HAMBURG
NEED FOR NEW INSTITUTIONS
Suggestions

EUROPEAN CONSUMER OFFICE
- at least with the powers of the US Federal Trade
Commission (FTC)
- would be better: with power to decide in crossborder consumer law issues
- national offices are useless – eg. book from Spain –
no money, no book, where to go?



EUROPEAN SMALL CLAIMS COURT
PUNITIVE DAMAGES?
CLASS ACTIONS (COLLECTIVE REDRESS)
- EU level: „Commission had not put forward convincing
evidence that action was needed at EU level to ensure
that victims of unlawful behaviour were compensated”
- Belgium: TEST Achats proposed it
Thank you for your attention!