The Consumer Rights Directive: How and Why A Quest For "Coherence" Has (Largely) Failed Stephen Weatherill

Common Market Law Review 49: 1279–1318, 2012.
© 2012 Kluwer Law International. Printed in the United Kingdom.
THE CONSUMER RIGHTS DIRECTIVE: HOW AND WHY A QUEST

FOR “COHERENCE” HAS (LARGELY) FAILED
STEPHEN WEATHERILL*
1. Introduction
The adoption of a Directive on consumer rights in October 2011 sounds like a

landmark in the development of a comprehensive and sophisticated régime of
EU consumer protection. It is nothing of the sort. Directive 2011/83 on
consumer rights is trivial in content and anyone unfamiliar with the
meanderings of EU consumer law and policy over the last three decades would
be bewildered by its grandiose title. How could a measure which merely
repeals and replaces Directive 85/577 on doorstep selling and Directive 97/7
on distance selling, while also very lightly amending Directive 93/13 on unfair
terms and Directive 1999/44 on consumer sales and guarantees, attract the
discourse of “consumer rights”? This measure, confined to pre-contractual
information disclosure, post-agreement rights of withdrawal and limited
aspects of contractual performance, is no charter of “consumer rights”.
The real interest lies in what has not been achieved – and why. The
Commission’s review of EU contract law, initiated in 2001 and still in
progress, is propelled by three principal identified current flaws: the
“patchwork” character of the legislative acquis, the preference for minimum
harmonization and diversity in interpretation of relevant legal concepts. This
is an unstable foundation for an internal market – it is not, the Commission
insists, “coherent”. The story of vainglorious Directive 2011/83 reveals that
making a fragmented legislative acquis “coherent” is opposed by technical
obstacles, but of deeper significance is the realization that “coherence” itself
is a contested virtue. This raises questions of far wider importance than for
consumer lawyers alone. It asks what sort of internal market is being created,
and how far it is appropriate or feasible to demand that national regulatory
autonomy be surrendered to the cause of economic integration.
* Somerville College and Law Faculty, Oxford University. I thank Christian Twigg-Flesner
for helpful comments. Blame for claims lies exclusively with me.
1280 Weatherill CML Rev. 2012
2. The uneven road to Directive 2011/83
The Preamble to Directive 2011/831 is in the modern idiom: a wearily

repetitive drone in the style of a speech by Fidel Castro. It tells us, however,
that the new measure is adopted in consequence on review “in the light of
experience with a view to simplifying and updating the applicable rules,
removing inconsistencies and closing unwanted gaps in the rules . . . moving
away from the minimum harmonization approach in the former Directives
whilst allowing Member States to maintain or adopt national rules in relation
to certain aspects.”2 This is a deceptively gentle introduction to the
extraordinary tale of the Commission’s decade-long unfinished review of EU
contract law. There is a superficial appeal to aims such as simplification and
updating, but if there are benefits, there are costs too – which is why today we
have to reckon with a Directive on consumer rights which is so remote from
deserving such an ambitious title.
2.1. The rise of the legislative acquis
The EU’s legislative acquis affecting contract law is mostly though not
exclusively concerned with consumer contract law. It is almost exclusively
based on Article 114 TFEU or its predecessors: that is, it is presented as
harmonization designed to improve the functioning of the internal market. The
consumer-specific legislative competence introduced by the Maastricht
Treaty, now found in Article 169 TFEU, has proved to be of minimal
significance to consumer protection generally and none at all to contract law.3
The acquis is wildly unsystematic, lacking in openly articulated priorities,
yet apt to make dents across wide areas of national contract law. A batch of
Directives affect aspects of the formation of particular consumer contracts:
those concluded away from business premises (“on the doorstep”),4 package
travel,5 timeshare,6 consumer credit,7 distance contracts,8 payment services in
1. Directive 2011/83 on consumer rights, O.J. 2011, L 304/64.

2. Ibid., recital 2.
3. It has been used for e.g. Decision 3092/94, O.J. 1994, L 331/1 on the establishment of a
system of information on home and leisure accidents; Directive 98/6, O.J. 1998, L 80/27 on
indication of prices offered to consumers; Decision 2007/602, O.J. 2007, L 234/13 creating a
“stakeholder dialogue group” in the area of public health and consumer protection.
4. Directive 85/577, O.J. 1985, L 372/31.
5. Directive 90/314, O.J. 1990, L 158/59.
6. Directive 94/47, O.J. 1994, L 280/83, replaced by Directive 2008/122, O.J. 2009, L 33/10.
8. Directive 97/7, O.J. 1997, L 144/19 amended by Directive 2007/64, O.J. 2007, L 319/1.
Consumer rights directive 1281
the internal market,9 electronic commerce,10 and distance marketing of

consumer financial services.11 The chosen technique involves mandatory
pre-contractual disclosure of information to consumers plus a chance to think
again after the fact (withdrawal rights/cooling-off periods). A pair of more
ambitious Directives go beyond contract formation and information
disclosure, and instead assert control over the content of the bargain. Directive
93/13 prohibits unfair terms in consumer contracts;12 Directive 99/44 on
certain aspects of the sale of consumer goods and associated guarantees
imports standards of required quality into consumer contracts.13 And now we
have Directive 2011/83 which, once its June 2014 deadline has passed and it is
transposed into national law, will establish a new régime for contracts
concluded away from business premises and for distance contracts, while
making small adjustments to Directives 93/13 and 99/44.
There is “a stone from Brussels here and there inserted into the edifices of
national private law”.14 The effect of EU initiatives is to re-shape – perhaps to
mis-shape – existing national structures, but only bit by bit, not systematically.
Yet for all the admitted eccentricity of a list that flits from doorstep selling to
package travel to unfair terms, these are not just isolated dots of legislative
opportunism. Thematic connections binding together the acquis may be
excavated.15 The emphasis on (pre-contractual) mandatory disclosure of
information combined with the grant to the consumer of a chance to think
again after the fact reveals a preference for transparency in the market and a
belief in the virtue of the “informed consumer”. Of course, one may readily
doubt whether consumers are really capable of processing the information on
offer and, if they are not, one would conclude that the EU measures are sham
corrections to informational and economic asymmetry.16 But the very fact that
such a debate is engaged confirms the EU as a thematically driven
policymaker.
10. Directive 2000/31, O.J. 2000, L 178/1.
11. Directive 2002/65, O.J. 2002, L 271/16.
12. Directive 93/13, O.J. 1993, L 95/29.
13. Directive 99/44, O.J. 1999, L 171/12.
14. Remien, “Uber den Stil des Europäischen Privatrechts”, 60 sZ (1996), 2, 8 (my
translation). Cf. Basedow, “Freedom of contract in the European Union”, 16 European Review
of Private Law (E.R.P.L.) (2008), 901.
15. E.g. Rösler, “Protection of the weaker party in European contract law: Standardized and
individual inferiority in multi-level private law”, 18 E.R.P.L. (2010), 729; Weatherill,
“Consumer policy”, in Craig and De Burca (Eds.), The Evolution of EU Law 2nd ed. (OUP,
2011). Broader still, Micklitz, “The visible hand of European regulatory private law – The
transformation of European private law from autonomy to functionalism in competition and
regulation”, 28 YEL (2009), 3.
16. Cf. Howells, “The potential and limits of consumer empowerment by information”, 32
Journal of Law and Society (2005), 349; Rischkowsky and Döring, “Consumer policy in a
The contribution of the Court of Justice has strengthened the claim that EU
consumer law has a distinct policy orientation. Typical is its approach to
Directive 93/13, which it has described as enshrining a system of protection
“based on the idea that the consumer is in a weak position vis-à-vis the seller
or supplier, as regards both his bargaining power and his level of
knowledge”.17 That was not mere rhetoric: it added that in consequence “the
national court is required to examine, of its own motion, the unfairness of a
contractual term where it has available to it the legal and factual elements
necessary for that task”.18 In Simone Leitner the Court ruled that the Package
Travel Directive covered compensation for non-material damage, even though
the text was silent on the point, observing that “the loss of enjoyment of the
holiday is of particular importance to consumers”.19 And derogations from EU
rules for the protection of consumers must be interpreted strictly.20
The orthodox use of the model of minimum harmonization of measures
affecting the economic interests of consumers ensured that EU intervention
did not displace national preferences to apply stricter rules. This was part of a
political bargain whereby Member States acquiesced in a generous approach
to the scope of EU legislative competence while allowing themselves the
safety valve allowed by the proviso that the EU rules established only a
minimum standard. But by 2001, the Commission concluded that the time was
right to conduct an inquiry into the nature and purpose of EU contract law. In
July 2001 it published its Communication on European Contract Law.21
Directive 2011/83 is one of the withered fruits of this review which has lasted
already for over a decade and is by no means at an end.
2.2. Three problems, one theme – “coherence”
What are the problems to which the Commission is seeking a solution?22 The
blizzard of paperwork that has swirled across the terrain since 2001 reveals
that there are at least three drawbacks to the state of the legislative acquis
market economy: Considerations from the perspective of the economics of information, the
new institutional economics as well as behavioural economics”, 31Journal of Consumer Policy
(JCP) (2008), 285.
17. Case C-243/08, Pannon GSM Zrt v. Erzsébet Sustikné Györfi, [2009] ECR I-4713,
para 22.
18. Para 35.
19. Case C-168/00, Simone Leitner, [2002] ECR I-2631, para 22.
20. E.g. Case C-481/99, Heininger, [2001] ECR I-9945, para 31; Case C-203/99, Veedfald,
[2001] ECR I-3569, para 15.
21. European Commission, Communication on European Contract Law, COM (2001) 398.
22. The project is now split between two DGs, Justice and Consumer Affairs:
<ec.europa.eu/justice/contract/index_en.htm<; <ec.europa.eu/consumers/rights/contract_law
_en.htm>.
which render it unfit for the purposes of underpinning a viable internal

market. First, it is fragmented – a “patchwork” of individual measures which
are not “joined up”. Second, it insists on only minimum rules, allowing
diversity between the Member States according to preference to apply stricter
standards. Third, it permits diverse interpretation of relevant legal concepts
housed within the acquis, leading to an uneven pattern of application at
national level. This is a general diagnosis but has also been tied by the
Commission to the review of specific Directives.23
All three weaknesses are captured by the claim that EU contract law lacks
coherence. The February 2003 document which serves a follow-up to the 2001
Communication appropriates exactly this language: it is entitled Action Plan
on a more coherent European Contract Law.24 Dirk Staudenmayer, an able
German lawyer who has provided much of the intellectual energy behind the
project in the Commission, explained that the quest is for “a significantly
higher degree of coherence in European contract law”.25 So, in the name of
coherence, the Commission set about (i) embroidering the patchwork, (ii)
moving from minimum to maximum harmonization and (iii) improving
consistency in interpretation.
Already in the 2001 Communication, a commitment to improving the
quality of legislation already in place had been floated.26 Improving
the quality of the acquis by ironing out internal inconsistencies within the
sector-specific measures is appealing. Legislative reform could, as a
minimum, tackle oddities such as the variation between the duration of the
“cooling off ” periods provided by individual Directives. There may perfectly
well be good reasons for variation27 but they are not the reason for the current
pattern. Legislative incrementalism is. And so the Commission turned to
cleaning up the acquis.
Eliminating the minimum model in favour of the maximum model is, as a
raw proposition, simply stated. Scepticism about the minimum model drips
from the pages of the review documents. The Commission’s Consumer Policy
Programme for 2002–2006 advocated a “move away from the present
situation of different sets of rules in each Member State towards a more
23. E.g. on Directive 97/7, COM(2006)514, on Directive 99/44, COM(2007)210.

24. European Commission, Action Plan on a more coherent European Contract Law,
COM(2003)68.
25. Staudenmayer, “The place of consumer contract law within the process on European
contract law”, 27 JCP (2004), 269, 277.
26. Communication on European Contract Law, cited supra note 21, paras. 57–60.
27. Cf. Eidenmüller, “Why withdrawal rights?”, 7 European Review of Contract Law
(ERCL) (2011), 1.
consistent environment for consumer protection across the EU”.28 In the case
of directives concerning protection of consumers’ economic interests, there is
a need “progressively [to] adapt them from minimum harmonization to full
harmonization measures”.29 The Commission’s shift has chimed with the
Council and Parliament. Directive 2002/65 on distant selling of financial
services was the first measure within the consumer acquis to reflect the new
policy preference for maximum harmonization.30 Then Directive 2005/29, on
unfair commercial practices, was adopted under the maximum model31 albeit
that the political objections of Denmark and Sweden, anxious about negative
impact on their existing level of consumer protection, had to be outvoted in
Council. By the time of its 2007 Green Paper on the Review of the Consumer
Acquis32 the Commission had excluded the orthodox pre-existing model of
minimum harmonization even as a possible option for the future.33
The “promotion of the development of common contract law principles
leading to greater convergence of national laws” had been on the
Commission’s 2001 agenda.34 The 2003 Action Plan associated this project
with the “common frame of reference” (CFR). The precise intent and even
more so the precise legal character of this instrument was left calculatedly
ambiguous, but the Commission’s initial preference was to treat the CFR as a
“toolbox” on which courts and legislatures may draw and so of a soft law
character.35 It could serve to strengthen systemic “coherence” by providing a
basis for uniform treatment of common notions and concepts across the field
occupied by the consumer acquis. The draft CFR (DCFR), prepared by
academic lawyers, was delivered to the Commission in December 2007, and
the full version was subsequently published in 2009 in six volumes.36 This the
Commission has chosen to treat as the academic CFR, thereby refraining from
addressing its precise intentions – though several purposes are plainly
feasible, if varying in their political plausibility, including nudging
28. European Commission, Consumer Policy Programme 2002–2006, COM(2002)208,

p. 11.
29. Ibid., p. 12.
30. Directive 2002/65, cited supra note 11.
31. Directive 2005/29, O.J. 2005, L 149/22.
32. Green Paper on the Review of the Consumer Acquis, COM(2006)744.
33. The lurking constitutional argument that minimum harmonization is not valid under
Art. 114 TFEU insofar as it fails to perfect the internal market is not convincing and based on
a selective reading of the case law, see Oliver (Ed.), Oliver on Free Movement of Goods in the
EU, 5th ed., (Hart, 2010), pp. 468–471.
34. Communication on European Contract Law, cited supra note 21, paras. 52–56.
35. E.g. European Contract Law and the revision of the acquis: The way forward,
COM(2004)651, p. 3.
36. Von Bar and Clive (Eds.), Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference, Full Edition (2009).
convergence in national practice, a basis for legislative codification or even

elevation to a Civil Code.37 In 2010, DG Justice in the Commission
established an Expert Group which would help the Commission select, revise
and restructure those parts of the DCFR which are of relevance for contract
law.38 Once again, pursuit of “greater coherence” was explicit.39 In May 2011,
this Expert Group published its “Feasibility Study” under the title “A
European contract law for consumers and businesses”.40 Then in October
2011, the “Feasibility Study” was presented as a “toolbox”, which the
Commission “integrates” into a Proposal for a Regulation on a Common
European Sales Law. This would create an “optional instrument”: a second
régime for each Member State, which will be uniform across the EU, but
serving as an alternative to, not a replacement for, national régimes.41
2.3. “Coherence” contested
But what is really at stake? However much the Commission may present its
inquiry as merely designed to uncover “problems for the functioning of the
internal market resulting from the co-existence of different national contract
laws”42 it is not possible to accept that a review of EU contract law could
plausibly only concern the nuts-and-bolts of the internal market. Emphasis on
economic growth may subvert hard-fought adjustments in national contract
law which have promoted the protection of groups such as consumers, workers
and tenants under an assumption that such economically disadvantaged
parties are deprived of a genuine right of self-determination in an unregulated
market. Contract law’s shaping is not apolitical.43 All the more so if the EU
rules are maximum in character, foreclosing national variation. The
Commission is open to the accusation that it is using the discourse of internal
market-driven “coherence” to disguise the sensitive political implications of
37. See Jansen and Zimmermann, “‘A European civil code in all but name’: Discussing the
nature and purposes of the draft common frame of reference”, 69 CLJ (2010), 98; Micklitz and
Cafaggi (Eds.), European Private Law after the Common Frame of Reference (Edward Elgar,
2010).
38. Decision 2010/233, O.J. 2010, L 105/109.
39. Recital 5, making a connection with the Stockholm Programme.
40. Available via <ec.europa.eu/justice/contract/files/feasibility_study_final.pdf>.
41. Proposal for a Regulation on a Common European Sales Law, COM(2011)635: quotes
from the associated Communication, COM(2011)636, pp. 6, 7.
42. COM(2001)398, para 72.
43. Cf. Study Group on Social Justice in European Private Law, “Social justice in European
contract law: A manifesto”, 10 ELJ (2004), 653; Rutgers and Sefton-Green, “Revising the
consumer acquis: (Half) opening the doors of the Trojan horse”, 16 E.R.P.L. (2008), 427;
Hesselink, “European contract law: A matter of consumer protection, citizenship, or justice?”,
15 E.R.P.L. (2007), 323; Twigg-Flesner, “No sense of purpose or direction? The modernization
of European consumer law”, 3 ERCL (2007), 198.
its review. However, it has preferred to stand aloof from demands to address
explicitly the sharp political edges of the debate. For understandable reason:
had the Commission shown its hand at an early stage it would doubtless have
prejudiced the debate. Moreover it seems improbable that the “Commission”
really had a hand at all. Over the past decade, beginning with the 2001
Communication, there has been an unmissable sense of fluctuating
preferences. Commissioners and officials come and go, responsible DGs are
shuffled,44 political fashions change, priorities alter. The review, driven by the
thirst for “coherence”, has itself suffered from periodic lack of coherence. The
road to Directive 2011/83 has indeed been uneven.
3. Consumer rights: From 2008 Proposal to 2011 Directive
The Commission’s review of the “consumer acquis” focused on eight

Directives within the “patchwork”: Directive 85/577 on doorstep selling,
Directive 90/314 on package travel, Directive 93/13 on unfair terms in
consumer contracts, Directive 94/47 on timeshare, Directive 97/7 on distance
contracts, Directive 98/6 on price indications, Directive 98/27 on injunctions
and Directive 99/44 on the sale of consumer goods and associated guarantees.
This was an ambitious agenda which, had it yielded a comprehensive reform,
could have done much to further the quest for greater “coherence”.
But eight became four. In October 2008 the Commission adopted a
proposal for a Directive on Consumer Rights.45 This would have replaced
Directives 85/577, 97/7, 93/13 and 99/44 with a “horizontal instrument”
which would, in effect, have combined the four separate régimes into one and
would have eliminated some internal inconsistencies. This, then, would have
advanced the first of the Commission’s driving concerns: it would have
cleaned up the acquis by knitting together four bits of the patchwork. The
proposal, it was declared, pursued full targeted harmonization.46 This meant
“targeting” the problems that amount to the most serious blockages to the
functioning of the internal market: and doing so according to a full – or
maximum – model of harmonization, which would have excluded the scope
for stricter national rules within the proposed Directive’s material scope.
There is nothing new in the idea that harmonization has a “target” – one must
always identify what a measure’s material scope is, for only within that field
44. See supra note 22.

45. Proposal for a Directive on Consumer Rights, COM(2008)614.
46. Ibid., pp. 3–4. The phrase, with targeted and full inverted, also appears at p. 7 of EU
Consumer Policy Strategy 2007 – 2013: Empowering consumers, enhancing their welfare,
effectively protecting them, COM(2007)99.
do the orthodox obligations of transposition fall upon the Member States.

Moreover, a focus on targets associated with building an internal market
reminds that what was then Article 95 EC and is now Article 114 TFEU does
not have an unlimited scope: a matter considered in Section 6 below. But the
Commission is primarily concerned with presentation. Coupling the
comfortingly confined notion of “targeting” to the maximum model of
harmonization is designed to allay anxieties that the EU is setting aside wide
areas of national contract law.47 This, then, conforms to the second of the
driving concerns in the Commission’s review: the preference to enhance
coherence by switching from minimum to maximum rules.
The third of the Commission’s concerns, improving common interpretation
of EU measures, would have been readily served by making a connection
between the CFR and the Proposed Directive. Oddly, and for no obvious
reason, this did not happen, and connections – which could feasibly have been
made, albeit not without confronting some new frictions48 – were left trailing
free.
The 2008 Proposed Directive, if adopted, would have cut a bold sweep
across regulation of unfair terms, protection of consumer sales and guarantees
and the methods of agreeing (and withdrawing from) contracts concluded on
the doorstep and at a distance, by establishing a more-or-less coherent régime
at EU level, involving also the exclusion of divergent stricter rules at national
level. But the 2008 draft met political resistance. Directive 2005/29 on unfair
commercial practices49 had been adopted in the teeth of two dissenting states,
Denmark and Sweden, but in this instance the opposition was stiffer. In July
2010, the Commission published its Green Paper on policy options for
progress towards a European Contract Law.50 This opened a fresh round of
public consultation – nine years after the initiation of the process! Referring to
“intense negotiations” in Council and Parliament about its preferred
maximum harmonization model, the Commission concedes that this is no
longer politically realistic across the full scope of the proposal.
There is neither space nor need to follow the debate exhaustively: only the
main themes matter.51 A good example of the core political objection may be
47. See especially p. 7 of COM(2008)614 on why (the Commission believes) the model of
full harmonization complies with the subsidiarity principle.
48. Cf. De Booys, Hesselink and Mak, “How the CFR can improve the Consumer Rights
Directive”, CSECL Working Paper 2009/09 (Amsterdam), available via
<papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=Pip_jrl&journal_id=956327>.
50. European Commission, Green Paper on policy options for progress towards a European
Contract Law, COM(2010)348.
51. Legislative history may be tracked at <www.europarl.europa.eu/oeil/popups
/ficheprocedure.do?lang=en&reference=SEC%282008%292547>.
found in the Report of the Parliament’s Committee on Economic and

Monetary Affairs. This protested that the Commission’s model would set the
EU rules below the level of protection guaranteed in some Member States and,
by virtue of insistence on maximum harmonization, would disable such
Member States from expressing local preference for extra protection. So, it
was argued: “The European Union’s attempt to combine the harmonization of
the internal market with a high level of consumer protection can best be
achieved by trying to raise the current minimum level of harmonization in the
direction of the best existing national practices”.52 The Committee on Legal
Affairs was similarly minded. It perceptively observed that full harmoniza-
tion “would lead in many cases to paradoxical effects, where the fully
harmonized provisions of consumer contract law would contrast with other
not fully harmonized provisions of b2c and b2b contract law at Member State
level”. In consequence “the goal of a ‘single set of rules’ is highly unlikely to
be achievable, and endless litigation around delineation issues is predict-
able . . . ”.53 The Committee therefore favoured minimum harmonization at a
high level of consumer protection as the norm – coupled to full harmonization
only of provisions on exercise and effects of the right of withdrawal.
The wintry academic reception to its Proposal was doubtless less troubling
to the Commission than the political opposition. However the almost
unanimous disdain with which the 2008 initiative met is striking. At the level
of detail, this is now ancient history: the 2008 proposal is dead. But a brief
flavour of the arguments against the proposal helps to underline the key point
that choosing maximum over minimum harmonization is not a technical
matter, but rather one that engages potentially high costs while also
confronting deeply sensitive questions about the proper location of regulatory
responsibility in Europe. So, for example, Jules Stuyck found that the
uncertain location of the outer edges of the proposed Directive, coupled to the
preference for maximum harmonization, would have destabilized the law
controlling unfair terms established by Directive 93/13 and by – often stricter
– national laws.54 Christian Twigg-Flesner was similarly anxious about how
Directive 99/44 on consumer sales would have been replaced by rules choked
by obscurity which, moreover, would have diminished existing levels of
consumer protection in some Member States.55 Other insightful
commentators expressed anxiety about imprecision in the material scope of
the proposed régime and/ or its depressive effect on existing levels of
52. PE439.439, 1 Oct. 2010, p. 4.
53. PE445.885, 24 Jan. 2011, p. 3.
54. Stuyck, “Unfair terms”, in Howells and Schulze (Eds.), Modernising and Harmonising
Consumer Contract Law (Sellier, 2009).
55. Twigg-Flesner, “Fit for purpose? The proposals on sales”, in Howells and Schulze, op.
cit. supra note 54.
consumer protection in some Member States and/or the way it would create an
area reformable by the EU alone which is fractured from related areas open to
renovation from within the national legal order.56 The Commission stood
accused of not facing up to the costs of its shift. Maximum harmonization
attracted few friends.57
The Report of the Parliament’s Committee on the Internal Market and
Consumer Protection, published in February 2011, reveals the persisting
political salience of choice of model.58 The Socialist and Democrat MEPs and
the Green MEPs were typically antagonistic to maximum harmonization,
treating it as a threat to established standards at national level. Representatives
of the European People’s Party and of the Alliance of Liberals and Democrats
for Europe were much warmer about the value of broader maximum
harmonization as a means to simplify business opportunities – with a view in
turn to enhancing choice and competition for consumers. The political
character of harmonization is vividly apparent. But come 2011 a compromise
was quickly struck.
Pursuant to the EU’s ordinary legislative procedure, the Parliament adopted
a set of amendments to the Commission’s original 2008 draft. The Council
was satisfied, the formalities were completed in October 2011 and Directive
2011/83 on consumer rights was published in November 2011. But it is a
trimmed-down compromise. Eight became four – now there are two. The
maximum harmonization model survives, but Directive 2011/83 replaces only
two Directives, Directives 85/577 and 97/7. This pair, it will readily be
appreciated, are far less interesting than the pair (93/13, 99/44) that have been
cut in response to political disquiet. And in fact the two that remain, on
doorstep selling (now off-premises selling) and distance selling, represent
an odd couple. Uniting them under the label “consumer rights” is at best an
instance of misleading advertising.
The Commission’s quest to widen and deepen the harmonized acquis in
order to promote a coherent regulatory environment for the development of
the internal market met a grudging and sceptical EU legislative process. The
“patchwork” of individual measures within the acquis lives on, the list of
56. See e.g. Whittaker, “Unfair contract terms and consumer guarantees: The proposal for
a Directive on consumer rights and the significance of full harmonisation”, 5 ERCL (2009),
223; Micklitz and Reich, “Crónica de una Muerte Anunciada: The Commission proposal for a
Directive on consumer rights”, 46 CML Rev. (2009), 471; Mak, “Review of the consumer
acquis: Towards maximum harmonisation?”, 17 E.R.P.L. (2009), 55; Van Boom, “The draft
Directive on consumer rights: Choices made and arguments used”, 5 Journal of Contemporary
European Research (2009), 452.
57. One is Hondius, “The proposal for a European Directive on consumer rights: A step
forward”, 18 E.R.P.L. (2010), 103.
58. PE442.789, 22 Feb. 2011.
Directives shortened by just one; maximum harmonization has been

embraced but only by removing Directives 93/13 and 99/44 from the reform;
and no progress has been made to tackle the risk of divergent interpretation of
relevant legal concepts. The outcome is a mouse of a Directive which reveals
much about the entrenched character of the inadequacies in the EU’s contract
law acquis.
4. Scope
Directive 2011/83 repeals and replaces Directive 85/577 on doorstep selling

and Directive 97/7 on distance selling, while also trivially amending Directive
93/13 on unfair terms and Directive 99/44 on consumer sales. Member States
must notify their implementing provisions to the Commission by 13
December 2013, apply those measures from 13 June 2014, and the provisions
of the Directive will apply to contracts concluded after 13 June 2014.
The aim of this section and the next is not to provide a nuts-and-bolts
account – that is best acquired simply by reading the Directive itself – but
instead to show the shape of the régime and to pick out its thematic
significance. In some respects the Directive fits comfortably within the
trajectory of the acquis – in particular in its familiar emphasis on information
disclosure and the right to withdraw. And it clearly represents an up-dating of
the two measures which are replaced, one (Directive 85/577) over 25 years old,
the other (Directive 97/7) 15 years old. But the aspects which are harmonized
are rather narrow, and as a replacement for just two of the eight Directives
originally subjected to Commission review – and two of the least important at
that – Directive 2011/83 remains a slender contribution to the Commission’s
understanding of “coherence”.
Article 3 of Directive 2011/83 deals with Scope. The Directive applies to
any contract concluded between a trader and a consumer, both of which are
defined in Article 2, the home to definitions. A “consumer” is any natural
person who is acting for purposes which are outside his trade, business, craft
or profession; a “trader” is any natural person or any legal person, irrespective
of whether privately or publicly owned, who is acting, including through any
other person acting in his name or on his behalf, for purposes relating to his
trade, business, craft or profession. Article 3 also expressly states that the
Directive applies to contracts for the supply of water, gas, electricity or district
heating, including by public providers, to the extent that these commodities
are provided on a contractual basis.59
59. Special provisions for these commodities is also found at Art. 2(3), which provides that
“water, gas and electricity shall be considered as goods within the meaning of this Directive
Article 3(2) states that if any provision of Directive 2011/83 conflicts with
a provision of another sector-specific EU act, the latter shall prevail. This,
then, guarantees the continuing fragmentation of the legislative acquis.
Article 3(3) lists exclusions. The Directive does not apply to a bundle of
thirteen distinct types of contract. There are some significant, though not
surprising, exceptions. Some, such as contracts concerning defined rights
relating to immovable property, were to be found in Directive 85/577 and/or
Directive 97/7, but some were not. Gambling is a newcomer to the list of
exceptions, so too is passenger transport services. The list of exceptions has
been widened: the scope of EU intervention correspondingly narrowed. This
is an indication of the sacrifices that must be made to secure political support
for a more intense form of regulation which, moreover, asserts maximum
harmonization (Section 7 below). “Coherence” is not served by such a long
list of excluded sectors, but “coherence”, as an appeal to a technical exercise
in flattening the regulatory landscape, collides with politically sensitive and
cherished interests, and may be forced to yield to them. The Services Directive
(Directive 2006/12360) offers a – considerably higher-profile – example of
such constraints. In its Article 2 several highly significant services sectors are
excluded from the régime: including some that met a similar fate in Directive
2011/83, such as financial services, services in the field of transport,
healthcare services, gambling activities, and some social services. And,
following the analogy, the Services Directive stops where other more specific
EU legislative rules begin. But the legislative “pre-history” of the Services
Directive is even more revealing. The “Bolkestein Draft”, proposed in 2004,61
relied on a model of maximum harmonization that would have treated the EU
Directive as the exclusive source of regulation of the services sector, but this
deep liberalizing cut was thwarted by energetic political resistance.62 The
finally agreed version, Directive 2006/123, contains a model that instead
leaves room for stricter national rules in some fields as well as asserting an
abridged material scope – although on both counts the final version is laced
with an illuminating level of imprecision.63 These, to repeat, are not technical
but intensely political issues, and the consequence of ambiguity is delegation
where they are put up for sale in a limited volume or a set quantity”; and even where they are not
so put up for sale, parts of the Directive apply, see Arts. 5(2), 6(2), 7(3), 8(8), 9(2)(c), 14(4)(a),
and special rules in Ch. IV too.
60. Directive 2006/123, O.J. 2006, L 376/36.
61. COM(2004)2.
62. Cf. Loder, “The Lisbon Strategy and the politicization of EU policy-making: The case
of the Services Directive”, 18 Journal of European Public Policy (2011), 566.
63. Cf. Barnard, “Unravelling the Services Directive”, 45 CML Rev. (2008), 323.
of important decision-making powers to the Court.64 The material scope of

Directive 2011/83 too has been radically shrunk compared with the
Commission’s 2008 Proposed Directive, but for good or ill (Section 7 below)
it has clung to the maximum model.
It is constitutionally plain that anything outside the Directive’s material
scope is unaffected by it. Recital 8 goes out of its way to make explicit one of
the consequences of the limitation of the Directive’s reach to consumer
contracts:
“The regulatory aspects to be harmonized should only concern contracts
concluded between traders and consumers. Therefore, this Directive
should not affect national law in the area of contracts relating to
employment, contracts relating to succession rights, contracts relating to
family law and contracts relating to the incorporation and organization of
companies or partnership agreements”.
Article 3(5) provides that: “This Directive shall not affect national general
contract law such as the rules on the validity, formation or effect of a contract,
in so far as general contract law aspects are not regulated in this Directive”.
This is rather opaque but is best taken as a belt-and-braces approach to
confining the material scope of Directive 2011/83.
5. Content
5.1. Chapter II: Information requirements
Chapter II, “Consumer Information for Contracts other than Distance or

Off-Premises Contracts”, comprises a single provision, Article 5. Before a
consumer is bound by a contract other than a distance or an off-premises
contract, or any corresponding offer, the trader shall provide the consumer
with specified information “in a clear and comprehensible manner, if that
information is not already apparent from the context”. The list of specified
information covers eight matters, including the main characteristics of the
goods or services, the identity of the trader, the total price, and so on. Special
provision is made for the functionality and interoperability of digital content,
which was missing from Directives 85/577 and 97/7. Article 5(3) adds that the
first paragraph need not apply to “contracts which involve day-to-day
transactions and which are performed immediately at the time of their
conclusion”. This permits Member States to protect supermarkets (and the
64. On Directive 2006/123 see e.g. Case C-119/09, Société fiduciaire nationale d’expertise
comptable v. Ministre du Budget, judgment of 5 April 2011, nyr. See further Section 7.2 infra.
like) from regulatory burdens. Article 5(4) provides that “Member States may
adopt or maintain additional pre-contractual information requirements for
contracts to which this Article applies”. So Chapter II of Directive 2011/83
applies the model of minimum harmonization (see further Section 7 below).
The net effect of Article 5 of Directive 2011/83 is to extend requirements of
pre-contractual information disclosure to contracts covered by the Directive,
i.e. those concluded between a trader and a consumer, subject to a range of
important exceptions set out in Article 3(3) (Section 4 above). Article 3(2)
adds that Directive 2011/83 is subordinate to other EU acts governing specific
sectors. So, for example, Directive 2008/122 on timeshare contains disclosure
requirements which would prevail over those mandated by Directive 2011/83.
Though similar, they are not identical. This is no recipe for “coherence”.
Directive 2011/83 is too unambitious to serve as a significant correction to
existing fragmentation in the acquis.
5.2. Consumer information and right of withdrawal
Chapter III, entitled “Consumer Information and Right of Withdrawal for

Distance and Off-Premises Contracts”,65 conforms to the long-standing
pattern of mandatory pre-contractual information disclosure and
post-agreement “cooling-off ” which serves as the leitmotif in EU consumer
policy.66 It updates and cleans up the régime instituted by the two now
replaced Directives, 85/577 and 97/7, and asserts that harmonization is
maximum in nature. Member States must put in place the envisaged régime –
and may not do more to protect their consumers.
5.2.1. Information requirements

Article 6 contains information requirements for distance and off-premises
contracts. Before the consumer is bound, the trader must provide the consumer
with specified information “in a clear and comprehensible manner”. The list
covers much of the ground already covered in Chapter II for contracts that are
not distance or off-premises, but goes further, extending to twenty matters,
and includes provisions that are tailored to the particular case of distance and
off-premises contracts. It also makes special provision for digital content.
The requirements go some way beyond those in Directive 97/7, and far
beyond the ancient Directive 85/377. For consumer protection this is an
evident improvement – on paper. In practice, that positive verdict is harder to
65. The two types of transaction are defined in Arts. 2(7) and 2(8) of the Directive
respectively and elaborated in fact-specific context in the Recitals.
sustain. It is well understood that consumers readily and rationally choose not
to absorb all information on offer.67 Life is too short. A good way to ensure that
really important information is disclosed but not appreciated by a target
consumer is to regulate in such a manner that the important information is
surrounded by less important clutter. The EU’s commitment to information
disclosure has become fetishistic, enlarged Directive by Directive, whereas
better regulation pleads for a more selective approach.
Article 6 assumes a standard consumer exists. But consumer capacities
vary. What is obvious to the attentive consumer may be a trap for the unwary.
Article 6 lacks such nuance, but Recital 34 nods in this direction. It states that
“the trader should take into account the specific needs of consumers who are
particularly vulnerable because of their mental, physical or psychological
infirmity, age or credulity in a way which the trader could reasonably be
expected to foresee”. Although this accommodates the reality of variety
among consumers, the Recital concludes that “taking into account such
specific needs should not lead to different levels of consumer protection”. If
this rules out “different levels” among different types of consumers, it is an
alarming suppression of regulatory sensitivity to vulnerable groups, and the
better interpretation is that its intent is to allow such nuance but to exclude
“different levels” in different Member States. The chosen model of maximum
harmonization ensures that national rules stricter than the EU standard are not
permitted and that the ultimate decision on what that EU standard is belongs
with the Court of Justice (Section 7.2 below).
Some of the information on the list in Article 6 is directly tied to ensuring
consumers grasp the full consequences of the right of withdrawal, considered
below (5.2.3): in particular, Directive 2011/83 is far more explicit than the
EU’s earlier measures in addressing matters associated with bearing costs in
the event of exercise of that right (5.2.5). Article 6 also promotes, but does not
require, use of the model instructions and withdrawal form contained in the
Directive’s Annex I.
What if the information is not provided? Article 6(9) provides that in
showing compliance “the burden of proof shall be on the trader”. Article 6(6)
states: “If the trader has not complied with the information requirements on
additional charges or other costs as referred to in point (e) of paragraph 1, or
on the costs of returning the goods as referred to in point (i) of paragraph 1, the
consumer shall not bear those charges or costs”. That is helpful to the
consumer. But Article 6 has nothing further to say about the consequences of
failure to provide other types of stipulated information. The particular case of
right of withdrawal is considered separately below (5.2.4), while general

standard provisions on enforcement and penalties are contained in Articles 23

and 24 of Directive 2011/83.
5.2.2. Formal requirements

Article 7, entitled “Formal requirements for off-premises contracts”,
represents a considerable elaboration of the requirements of Directive 85/577.
Transparency and information disclosure remain thematically central. The
core provisions are Article 7(1) – “With respect to off-premises contracts, the
trader shall give the information provided for in Article 6(1) to the consumer
on paper or, if the consumer agrees, on another durable medium. That
information shall be legible and in plain, intelligible language”; and Article
7(2) – “The trader shall provide the consumer with a copy of the signed
contract or the confirmation of the contract on paper or, if the consumer
agrees, on another durable medium …”. Article 8 is entitled “Formal
requirements for distance contracts” and is thematically consistent: “With
respect to distance contracts, the trader shall give the information provided for
in Article 6(1) or make that information available to the consumer in a way
appropriate to the means of distance communication used in plain and
intelligible language. In so far as that information is provided on a durable
medium, it shall be legible”.
Both Articles 7 and 8 make special provision for particular sectoral
contracts, which do not deserve exhaustive recitation here. Article 8 is the
more elaborate. It deals with inter alia the need to make the consumer aware
if a distance contract to be concluded by electronic means that an obligation to
pay arises; and with communication by telephone. Some, though not all, of
this was to be found in Directive 97/7. It represents a legislative up-dating in
the light of technological advance.
Articles 7(5) and 8(10) forbid Member States from imposing any further
formal pre-contractual information requirements for the fulfilment of the
Directive’s information obligations. This is maximum harmonization. It
deserves separate treatment (Section 7 below).
5.2.3. Right of withdrawal: Method, duration, effect

Article 9(1) provides that the consumer shall have a period of 14 days to
withdraw from a distance or off-premises contract, without giving any reason,
and without incurring any costs other than those provided for in Article 13(2)
and Article 14. This applies save where the exceptions in Article 16 apply (see
below).
Seven days was the term in both Directive 85/577 and Directive 97/7: now
14 days are allowed to “cool off ”. Article 9(2) provides detailed rules on the
date from which the 14 day period runs – in the case of service contracts, the
day of the conclusion of the contract; in the case of sales contracts, the day on
which the consumer or a third party other than the carrier and indicated by the
consumer acquires physical possession of the goods, and so on. Article 9(3)
adds that “The Member States shall not prohibit the contracting parties from
performing their contractual obligations during the withdrawal period.
Nevertheless, in the case of off-premises contracts, Member States may
maintain existing national legislation prohibiting the trader from collecting
the payment from the consumer during the given period after the conclusion of
the contract”.
The detail on how the consumer may exercise the right of withdrawal is set
out in Article 11. The essence is that the consumer must inform the trader of
the decision either by use of the model withdrawal form set out in an Annex to
the Directive or by any other unequivocal statement. It is explicitly provided
that Member States shall not provide for any formal requirements other than
those set out in the Annex. This, as Recital 44 asserts, “should simplify the
withdrawal process and bring legal certainty”.
Article 12 deals with effects of withdrawal. The exercise of the right of
withdrawal shall terminate the obligations of the parties to perform the
distance or off-premises contract; or to conclude the distance or off-premises
contract, in cases where an offer was made by the consumer.
5.2.4. Right of withdrawal: Failure to notify

So the consumer must be informed of his/her right to withdraw; he/she has a
14 day window within which to withdraw. But what if the consumer is not
informed? This is addressed in Article 10, “Omission of information on the
right of withdrawal”. Where the trader has not provided the consumer with
the required information, the withdrawal period shall expire 12 months from
the end of the initial (14 day) period. Furthermore where the trader
provides the consumer with the information within the 12 month period, the
withdrawal period shall then expire 14 days after the day upon which the
consumer receives the information.
Preventing the right to withdraw from enduring indefinitely where the
trader neglects to provide the required information might seem to represent a
fair balance between competing interests and a means to ensure legal
certainty.68 But it is an innovation which reduces the vigour of EU consumer
protection. Under Directive 85/577, which applied a shorter “cooling off ”
period than the 14 days envisaged by Directive 2011/83, the consequences of
trader default were not addressed at all. One might have thought that they were
68. Recital 43 makes this claim.

governed by national law, but in a fascinating example of its zeal to

“complete” an EU harmonized legislative régime, the Court intervened.
Heininger69 concerned an agreement by a bank to lend money to consumers to
purchase a flat. A contract concerning a right relating to immovable property
is expressly excluded from the scope of Directive 85/577, as it is from
Directive 2011/83 (Section 4 above), but the Court treated the loan agreement
as a separate contract which fell within the scope of the protective régime
when, as in the case, concluded “on the doorstep”. The consumers sought to
withdraw from the loan agreement almost five years later, claiming the bank
had failed to inform them of their right to withdraw. Under German law that
right could not endure for more than one year after the conclusion of the
contract. The Court found that the bank’s default left the consumer ignorant of
the right to withdraw, which meant that it endured and could not be subject to
a cut-off set by national law. The trader might complain of long-term legal
uncertainty, but the solution to that anxiety is simple: advise the consumer of
the right to withdraw!70
Subsequently in Hamilton71 the Court decided that it was compatible with
the Directive for a Member State to stipulate that performance in full shall
cause the right to withdraw to lapse even in the absence of due notification.
This did not contradict Heininger – where the contract had not been fully
performed – but did suggest that consumer protection, which in this ruling is
treated as not “absolute” and “subject to certain limits”,72 could and should
sometimes yield to concern for legal certainty. Tension is clear. One could
approve of what is in effect judicial extension of the scope of legislative
harmonization in a case like Heininger as a means to realize more perfectly the
EU’s system of consumer protection: whereas one could approve of a more
restrained ruling such as Hamilton as duly respectful of the limits of the EU’s
own competence in the field of private law and consequently astute to the
virtue of allowing local solutions and developed expertise to be applied. The
Court’s case law is erratic: both trends may be identified in different
contexts.73 Not one of the judges who sat in Heininger sat in Hamilton: the
69. Heininger, cited supra note 20.

70. Ibid., para 47.
71. Case C-412/06, Annelore Hamilton v. Volksbank Filder, [2008] ECR I-2383.
72. Ibid., paras. 39 and 40. Cf. Case C-215/08, E. Friz, [2010] ECR I-2947.
73. See e.g. Collins, The European Civil Code: The Way Forward (CUP, 2008), pp. 51–61;
Gerstenberg, “Private law and the new European constitutional settlement”, 10 ELJ (2004),
766, 782–786; Weatherill, “Interpretation of directives: The role of the Court”, in Hartkamp et
al. (Eds), Towards a European Civil Code (Wolters Kluwer, 2011); Basedow, “The Court of
Justice and private law: Vacillations, general principles and the architecture of the European
judiciary”, 18 E.R.P.L. (2010), 443.
advocates general were different too. The Court is not a source of

“coherence”: quite the reverse.
By providing for a 12-month cut-off, Article 10 makes a small contribution
to coherence, since whereas Directive 85/577 was bare of provision for the
consequences of failure to inform the consumer of the right to withdraw,
Directive 97/7 had already established a more elaborate régime based on a
period of three months within which to exercise the right. Directive 2011/83
has brought the diverse régimes under Directives 85/577 and 97/7 into line.
5.2.5. Costs
Directive 85/577 did not mention costs at all; Directive 97/7 provided merely
that a consumer exercising a right of withdrawal may be charged only the
direct cost of returning the goods. Directive 2011/83 is fuller. In part this is
because there is a good deal more worth addressing; in part this is because here
too the Court’s engagement has prompted a legislative reaction.
Article 13 deals with obligations of the trader in the event of withdrawal. It
is uncontroversial. The trader must reimburse all payments received from the
consumer, subject only to being freed from a requirement to reimburse
supplementary costs where the consumer has expressly opted for a type of
delivery other than the least expensive type of standard delivery offered by the
trader. Article 14 addresses the obligations of the consumer in the event of
withdrawal. The basic principle is return of the goods, supplemented by an
obligation to bear the direct cost of such return, except where the trader agrees
to bear the cost or has failed to inform the consumer that the consumer has to
bear them.
Tricky questions attach to compensation for use of a product. In Pia
Messner74 Directive 97/7 was interpreted to mean that where the consumer
exercises the right to withdraw, national law may require payment of fair
compensation for use made of the product. The Court rooted this finding in the
“principles of civil law” concerning good faith and unjust enrichment. Quite
where the Court finds these principles is unclear: so too whether “principles of
civil law” are anyway an appropriate nourishment for the EU’s sui generis
legal order.75 As in Heininger, the Court appears to regard it as within its remit
74. Case C-489/07, Pia Messner v. Firma Stefan Krüger, [2009] ECR I-7315.
75. Cf. Weatherill, “The ‘principles of civil law’ as a basis for interpreting the legislative
acquis”, 6 ERCL (2010), 74; Hesselink, “The general principles of civil law: Their nature, roles
and legitimacy”, in Leczykiewicz and Weatherill (Eds), The Involvement of EU law in Private
Law Relationships (Hart, 2012).
to enlarge the scope of harmonization beyond the explicit terms of the

legislative text. More EU “system” – but less space for national law.76
The matter is now the subject of fuller treatment in Directive 2011/83.
Article 14(2) provides that consumers are liable only for any diminished value
of the goods resulting from handling beyond what is necessary to establish the
nature, characteristics and functioning of the goods. Consumers are in any
event not liable for diminished value of the goods where the trader has failed
to provide notice of the right of withdrawal in accordance with the Directive.
The penalty for a trader’s non-disclosure – no consumer liability – is neat, but
the core of the liability that arises if the notice of withdrawal is effective is
ambiguous. Probably doing more than one would do when buying a product in
a shop would trigger such liability – for example, not just trying on but
choosing to wear clothes that are subsequently returned would lead to the
consumer being required to cover any diminution in value.77 But ambiguity in
consumer protection tends to undermine its effectiveness, as it allows
typically better funded and savvier traders to fob off consumers by exploiting
the lack of precision, and the risk that demand for payment for use will tend to
inhibit consumers from exercising their right of withdrawal is real.
Article 14(3) deals with a special case: a consumer who has asked that
provision of services shall begin before the expiry of the withdrawal period78
and who nevertheless then exercises the right of withdrawal shall pay an
amount “in proportion to what has been provided until the time the consumer
has informed the trader of the exercise of the right of withdrawal, in
comparison with the full coverage of the contract”. On paper this is a sensible
attempt to strike a balance – but the experienced consumer lawyer knows that
notions such as proportionality are not sharp-edged enough to guarantee
effective consumer protection.
Article 14(4) provides a list of circumstances in which the consumer shall
bear no cost: these concern special cases of (a) the performance of services or
the supply of water, gas or electricity, and (b) the supply, in full or in part, of
digital content which is not supplied on a tangible medium. Such intricacies
are reserved for the truffle hounds of EU consumer policy. Article 14(5) makes
clear that no liability may be incurred by the consumer as a consequence of the
exercise of the right of withdrawal beyond that foreseen by Articles 13 and 14.
Another special case is tucked away towards the back of the Directive.
Article 27 covers Inertia selling. The consumer is to be exempted from an
76. This article is confined to the consumer acquis but other instances of judicial
“discovery” of general principles cause similar anxiety, e.g. Case C-144/04, Mangold, [2005]
ECR I-9981. Here too the ambition of the Court is uneven: cf. the less bold ruling in Case
C-101/08, Audiolux SA, [2009] ECR I-9823.
77. Cf. Recital 47.
78. Pursuant to Art. 7(3) or 8(8).
obligation to pay for goods which are the subject of unsolicited supply. It is
added, for the sake of clarity, that the absence of a response from the consumer
following unsolicited supply will not constitute consent. Directive 97/7
already addressed this peril. Moreover inertia selling is prohibited by
Directive 2005/29 on Unfair Commercial Practices. That Directive does not
provide for a contractual remedy, and therefore Directive 2011/83
supplements it by requiring that no contractual obligation shall arise where the
consumer is supplied with unsolicited goods.
5.2.6. Ancillary contracts

Article 15 of Directive 2011/83 deals with the effects of the exercise of the
right of withdrawal on ancillary contracts. It too is a response to judicial
involvement in the interpretation of the pre-existing régime, which did not
explicitly address the question of ancillary contracts at all. The problem is this.
A consumer exercises the right to withdraw some months after entering into
the contract, having only just discovered the existence of the right because it
had not been brought to his or her attention by the trader. This is no help at all
if it puts an end to the contract withdrawn from – say a contract to borrow
money – but leaves intact the contract – say to buy property – entered into on
the strength of the loan. Heininger79 left untouched the question of what
effects cancellation of a loan agreement should have on a contract for purchase
of immovable property. Contracts for the sale of immovable property are
unambiguously excluded from the reach of Directive 85/577, and the same is
true of Directive 2011/83, via Article 3(3)(e). In Schulte80 the Court addressed
this in a nuanced but obscure manner. It held that national law may provide,
where the two contracts form a single economic unit, that the cancellation of
the loan agreement has an effect on the validity of the contract concerning
immovable property, but the Directive does not require such an effect. The
Court, disinclined to use pursuit of effective consumer protection as a basis for
reaching for solutions that lie beyond the Directive’s explicit text, showed here
a reticence absent from some other rulings associated with the acquis.
Article 15(1) now provides that without prejudice to Directive 2008/48 on
credit agreements where the consumer exercises his right of withdrawal from
a distance or an off-premises contract in accordance with Articles 9 to 14 of
Directive 2011/83, “any ancillary contracts shall be automatically terminated,
without any costs for the consumer, except as provided for in Article 13(2) and
in Article 14” of Directive 2011/83. And Article 15(2) adds that “The Member
States shall lay down detailed rules on the termination of such contracts” –
79. Heininger, cited supra note 69.

80. Case C-350/03, Schulte, [2005] ECR I-9215.
which one would suppose is a thoroughly awkward task, given the impact on
frequently unwitting third parties. Moreover, defining an “ancillary” contract
is tricky. Article 2(15) offers a definition in terms that will require careful
factual assessment on a case-by-case basis: the ancillary contract is “a contract
by which the consumer acquires goods or services related to a distance
contract or an off-premises contract and where those goods are supplied or
those services are provided by the trader or by a third party on the basis of an
arrangement between that third party and the trader”.
5.2.7. Exceptions
Article 16 lists exceptions from the right of withdrawal. None is especially
surprising or controversial. There are thirteen, beginning with “service
contracts after the service has been fully performed if the performance has
begun with the consumer’s prior express consent, and with the
acknowledgement that he will lose his right of withdrawal once the contract
has been fully performed by the trader” and ending with “the supply of digital
content which is not supplied on a tangible medium if the performance has
begun with the consumer’s prior express consent and his acknowledgment
that he thereby loses his right of withdrawal”. Learning the full list is a task for
the consumer law specialist.
5.3. The virtue and vice of pursuing wider “systematization”
There is a wider landscape inviting “systematization”, and although Directive

2011/83 could have been mapped on to it, chances of enhanced “coherence”
have been lost. The withdrawal period serves as a helpful case study.
The DCFR81 covers Withdrawal Period in II. - 5:103:
(1) A right to withdraw may be exercised at any time after the conclusion of
the contract and before the end of the withdrawal period.
(2) The withdrawal period ends fourteen days after the latest of the fol-
lowing times;
(a) the time of conclusion of the contract;
(b) the time when the entitled party receives from the other party
adequate information on the right to withdraw; or
(c) if the subject matter of the contract is the delivery of goods, the
time when the goods are received.
(3) The withdrawal period ends no later than one year after the time of
conclusion of the contract.
81. Draft Common Frame of Reference, cited supra note 36.

(4) A notice of withdrawal is timely if dispatched before the end of the

withdrawal period.
But no cross-reference at all is made to the DCFR in Directive 2011/83.
The Expert Group’s “Feasibility Study”82 has a scope that goes far beyond
Directive 2011/83, but has clear connections with it. Articles 13–22 on
information disclosure are readily comparable to the Directive; so too Articles
40–43 on withdrawal rights. Article 42 of the Feasibility Study prefers to solve
the Heininger problem by allowing only six months before the door to
withdrawal slams shut, whereas the Directive opts for twelve months. But the
Feasibility Study is unmentioned in Directive 2011/83.
The Feasibility Study was, however, integrated into the Commission’s
October 2011 Proposal for a Regulation on a Common European Sales Law.83
Article 42(2) provides that:
Where the trader has not provided the consumer with the information
referred to in Article 17 (1), the withdrawal period expires:
(a) after one year from the end of the initial withdrawal period, as
determined in accordance with paragraph 1; or
(b) where the trader provides the consumer with the information
required within one year from the end of the withdrawal period as
determined in accordance with paragraph 1, after fourteen days
from the day the consumer receives the information.
This is close to Directive 2011/83. Directive 2008/48 on credit agreements

includes (in Art. 5) a pre-contractual obligation to inform the consumer of the
existence or absence of a right of withdrawal, and (in Art. 10) an obligation to
include in the agreement information about “the existence or absence of a
right of withdrawal, the period during which that right may be exercised and
other conditions governing the exercise thereof ”; but it offers no further
provision governing the consequences of failure to notify. Directive 2008/122
on timeshare contains (Art. 5) an obligation on the trader to notify the
consumer of the right to withdraw which (Art. 6) is to last for fourteen days;
and then it complicates matters further (Art. 6(3)) by distinguishing between
failure to provide the standard withdrawal form (where the withdrawal period
shall expire after one year and 14 calendar days) and failure to provide other
mandated forms of pre-contractual information (three months and 14 calendar
days).
It would exhaust the reader’s patience to provide a comprehensive account
of this pattern of divergence Directive-by-Directive, with reference also to the
DCFR and the Feasibility Study – all the more so were this to be extended to
examination of all the Articles of Directive 2011/83 in comparison and
82. See website supra note 40.
83. European Commission Proposal for a Regulation on a Common European Sales Law,
cited supra note 41.
contrast with treatment of similar issues in other Directives, DCFR and

Feasibility Study, and even more so were one to engage with the whirlwind of
intellectual energy that has generated projects such as the Principles of
European Contract law (PECL), the “Acquis Principles”, and the UNIDROIT
Principles of International Commercial Contracts.84 It is, however, exactly this
gruelling comparative task that consumer lawyers wishing to advise on the
state of the law and its possible future mutation must undertake. Suffice it to
say for the purposes of this illustrative analysis that it confirms the haphazard
accumulation of rules which makes so compelling the case for a legislative
clean-up. Directive 2011/83 is a clean-up, but a very small one.
This is a case study in multiple and diverse sources of common principles,
some binding, some not. Should one assert emerging general principles of EU
law by combing these sources? Should the Court do so?
There is nothing particularly new about “non-legislative codification”85
and in Europe today there is a lot of scholarly searching for – sometimes
mutually reinforcing, sometimes potentially competing – common principles.
There is debate about how far this DCFR (or this Feasibility Study, or this
PECL) reveals bias towards particular conceptions of contract law and/or
offers poor expression of a systematic approach.86 There is debate about
whether what is afoot is welcome emancipation from State-centric
assumptions about norm-creation or instead the drawing of a pluralist veil over
adherence to the democratic foundation of the rule of law.87 Were any of these
projects to be offered Commission support as candidates for transformation
into some kind of EU act, then there would be room for political argument
both about the merits of competing substantive choices and constitutional
questions associated with whether the EU could truly deliver anything so
broad and, deeper still, how far the quest for “coherence” in the EU is in truth
pursuit of intolerant homogeneity. But the more specific question of the place
84. For a survey of relevant projects see Schulze, “Contours of European private law”, pp.
3–26 in Schulze and Schulte-Nölke (Eds.), As much diversity as possible, as little uniformity as
necessary? (Sellier, 2011). For links see <ec.europa.eu/internal_market/contractlaw/
links_en.htm>.
85. E.g. Bonell, “Unification of law by non-legislative means: The UNIDROIT draft
principles for international commercial contracts”, 40 AJCL (1992), 617: his survey of possible
uses of the principles could readily be transplanted to current debates. Legal historians would
look further back in time: e.g. Van Caenegem, European Law in the Past and the Future: Unity
and Diversity over Two Millennia (CUP, 2002).
86. Cf. Jansen, “Dogmatising non-legislative codifications: Non-legislative reference texts
in European legal discourse”, in Brownsword, Micklitz, Niglia and Weatherill (Eds), The
Foundations of European Private Law (Hart, 2011), ch. 3.
87. E.g. contrast Smits, “Plurality of sources in European private law, or: How to live with
legal diversity?” with Storme, “The foundations of private law in a multi-level structure:
Balancing, distribution of law-making power and other constitutional issues”, in Brownsword et
al. ibid., chs. 19 and 23.
of any or all of these projects before the Court of Justice offers an extra twist.
The practice of the Court in interpreting the acquis has been exposed as
erratic: sometimes bold, sometimes cautious.88 There is every reason to expect
a similar pick-and-mix attitude to the DCFR (and other texts), given that there
is neither a governing norm nor consistent institutional practice. One can
readily foresee that different advocates general and different Chambers of the
Court will take different approaches when invited to interpret a route to a
network of principles that transcends the idiosyncratically fragmented acquis.
An obvious analogy is with the Charter of Fundamental Rights, which was
solemnly proclaimed by the Parliament, Council and Commission,89 but
lacked binding status until the entry into force of the Lisbon Treaty in 2009.
Advocates general and the General Court bit chunks off it, while the Court of
Justice fastidiously ignored it until 2006.90 Neither DCFR nor Feasibility
Study can boast the relatively open participatory process that led to the
Charter,91 nor even the ambiguous birth rite of solemn proclamation, but
already the DCFR has slipped into Opinions of some advocates general92
while remaining ignored by the Court.
While there remain gaps within and variation between individual consumer
law measures there is ample scope for transplanting solutions from one
directive across to another that is less complete; and still wider scope for the
Court to reach for the several available non-legislative codifications as sources
for common interpretative inspiration. There is a respectable argument that the
Court should be open to the influence of such projects as it seeks to make more
systematic the acquis. Equally, there is force to the objection that while the
acquis remains fragmented and a legislative mandate for a “cross-directive”
approach is absent, this Professorenrecht lacks legitimacy. And one should not
assume too readily that the Court has the necessary expertise to shape
“Europeanized” private law solutions at the expense of national autonomy.
The more one is convinced of the contested political choices that are at stake
in shaping an EU contract law, the more one is likely to be resistant to the
stamp of judicial approval on the influence of the DCFR and/ or its cousins;
moreover, it is where the Court not only “finds” a general principle of EU law
88. See references made supra note 73.

89. O.J. 2000, C 364/1.
90. Case C-540/03, Parliament v. Council, [2006] ECR I-5769. See Bazzocchi, “The
European Charter of Fundamental Rights and the Courts”, in di Federico (Ed.), The EU Charter
of Fundamental Rights (Springer, 2011), pp. 55–76.
91. Cf. de Burca, “The drafting of the European Union Charter of Fundamental Rights”, 26
EL Rev. (2001), 126.
92. E.g. A.G. Maduro in Annelore Hamilton v. Volksbank Filder, cited supra note 71; A.G.
Trstenjak in Pia Messner, cited supra note 74; A.G. Trstenjak in Case C-540/08, Mediaprint,
judgment of 9 Nov. 2010, nyr.
but also requires it be applied to debar application of a national principle that

the most potent objections arise to systematization.
All available evidence suggests that this Court lacks a guiding mind. We can
anticipate that rulings cherry-picking the several available sources in order to
impose a systematizing impulse on the current fragmented state of the acquis
will co-exist with rulings accepting that legislative caution should brake
judicial momentum. This may be intellectually intriguing, but it is no recipe
for coherence.
5.4. Other consumer rights
Chapter IV is entitled Other Consumer Rights. This is a misleadingly grand

label. The Chapter contains just six Articles which supplement the acquis on
sales and service contracts.
Article 18 contains rules on delivery that apply to sales contracts. The trader
shall deliver the goods by transferring physical possession or control to the
consumer without undue delay, and not later than 30 days from the conclusion
of the contract. Article 18(2) specifies the consequences of failure to fulfil this
obligation – which may entitle the consumer to terminate the contract – and
Article 18(3) requires reimbursement of all sums paid under the contract upon
termination. However, it is provides that this applies “unless the parties have
agreed otherwise on the time of delivery”, and it seems easy for a trader to
escape through this window.
Article 20 contains rules on passing of risk that, as with Article 18, also
apply to sales contracts. The risk of loss or damage shall pass to the consumer
when he (or a third party indicated by the consumer and other than the carrier)
has acquired physical possession of the goods. The sole proviso is that the risk
shall pass to the consumer upon delivery to the carrier if the carrier was
commissioned by the consumer to carry the goods.
Articles 19, 21 and 22 apply to sales and service contracts. Article 19
provides that “Member States shall prohibit traders from charging consumers,
in respect of the use of a given means of payment, fees that exceed the cost
borne by the trader for the use of such means”. This is aimed at sneaky
increases in overall price that a consumer might not spot. Article 21 deals with
communication by telephone, and is similarly motivated by concern to address
hidden costs. It requires that a cap be placed on the rate charged for contacting
a trader via a telephone line. Article 22 requires that the trader shall seek the
express consent of the consumer to any extra payment in addition to the
remuneration agreed upon for the trader’s main contractual obligation before
the consumer is bound by the contract or offer. This is designed to protect the
consumer against hidden costs, although plainly it assumes that the consumer
is sharp enough to grasp what he or she is asked to consent to.
5.5. The imperative nature of the Directive
Article 25 underlines the Directive’s protective concern. It provides that if the

law applicable to the contract is the law of a Member State, consumers may not
waive the rights conferred on them by the national measures transposing this
Directive. Moreover, any contractual terms which directly or indirectly waive
or restrict the rights resulting from this Directive are not binding on the
consumer.
6. Legal base
Directive 2011/83 on consumer rights is based on Article 114 TFEU. It is,

then, a measure of harmonization aimed at improving the functioning of the
internal market. The Directives it repeals and replaces (85/577, 97/7) and the
Directives that it amends (93/13, 97/7) were all equally based on the internal
market base prevailing in the Treaty at the time of their adoption.
The decade-long review of contract law has skated on thin constitutional
ice, although the Commission has typically avoided aggressive engagement
with the matter of proper legal base.93 But even though Directive 2011/83
follows previous directives in the field by relying on (what is now) Article 114
TFEU, it is not constitutionally watertight. Technological advance has stripped
away practical obstacles to contracting across borders, but hindrances
associated with uncertainty about legal variation are plausibly still real, and
therefore harmonization of laws on distance selling is readily connected to the
construction of an internal market. By contrast, the basis for Directive 85/577
has long been considered constitutionally frail. Directive 85/577 baldly
claimed that disparity between laws regulating doorstep selling “may directly
affect the functioning of the common market”, but it made not the slightest
attempt to make good this speculative claim.
The Preamble to Directive 2011/83 goes further than Directive 85/577 in
attempting to make the case that Article 114 TFEU is a valid legal base for
harmonization of laws governing what we now call “off-premises contracts”.
Recital 5 states that:
93. Cf. Weatherill, “Constitutional issues – How much is best left unsaid?”, in Vogenauer
and Weatherill (Eds.), The Harmonisation of European Contract Law: Implications for
European Private Laws, Business and Legal Practice (Hart, 2006); Ludwigs, “Harmonisierung
des Schuldvertragsrechts in Europa”, (2006) EuR, 370.
“The cross-border potential of contracts negotiated away from business

premises (direct selling) is constrained by a number of factors including
the different national consumer protection rules imposed upon the
industry. Compared with the growth of domestic direct selling over the last
few years, in particular in the services sector, for instance utilities, the
number of consumers using this channel for cross-border purchases has
remained flat. Responding to increased business opportunities in many
Member States, small and medium-sized enterprises (including individual
traders) or agents of direct selling companies should be more inclined to
seek business opportunities in other Member States, in particular in border
regions. Therefore the full harmonization of consumer information and
the right of withdrawal in distance and off-premises contracts will
contribute to a high level of consumer protection and a better functioning
of the business-to-consumer internal market”.
This is still thin.94 Directive 85/577 was adopted prior to the entry into force of
the Single European Act in 1987, at a time when political consensus was in
practice sufficient to guarantee the adoption of measures that in principle
might be thought to strain the outer edges of legislative competence.95 Since
the rise of Qualified Majority Voting in Council and, in particular, since the
Court’s landmark ruling in the first Tobacco Advertising case,96 we know that
not only in principle but also in practice the constitutionally fundamental point
that the EU possesses only a limited competence matters. It is a specific
expression of Article 5 TEU’s principle of conferral that Article 114 TFEU
may not be used simply because it is politically convenient to deploy it as a tool
of general policy-making: a contribution to the internal market is necessary.
This is the threatening constitutional environment in which Directive
2011/83’s validity falls to be assessed.
However, since it lit a constitutional firework in Tobacco Advertising, the
Court has almost without exception thrown a damp blanket over objections to
the alleged misuse of Article 114, to the point where one is readily forgiven for
doubting whether an astutely drafted measure will ever fall foul of the
Treaty.97 In its most recent exploration, Vodafone, the Court assembled the
following test:
94. As already noted in an editorial in this Review, addressing questions of competence in

the light of Directives 2000/35, now 2011/7, and 85/577, and the proposed Consumer Rights
Directive: 48 CML Rev. (2011), 653.
95. See Weatherill, op. cit. supra note 15.
96. Case C-376/98, Germany v. Parliament and Council, [2000] ECR I-8419.
97. See Weatherill, “The limits of legislative harmonisation ten years after Tobacco
Advertising: How the Court’s case law has become a ‘drafting guide’”, 12 German Law Journal
(2011), 827; Wyatt, “Community competence to regulate the internal market”, in Dougan and
Currie (Eds.), Fifty Years of the European Treaties: Looking Back and Thinking Forward (Hart,
2009).
“ . . . According to consistent case law the object of measures adopted on

the basis of [Article 114(1) TFEU] must genuinely be to improve the
conditions for the establishment and functioning of the internal
market . . . While a mere finding of disparities between national rules and
the abstract risk of infringements of fundamental freedoms or distortion of
competition is not sufficient to justify the choice of [Article 114 TFEU] as
a legal basis, the [Union] legislature may have recourse to it in particular
where there are differences between national rules which are such as to
obstruct the fundamental freedoms and thus have a direct effect on the
functioning of the internal market . . . or to cause significant distortions
of competition . . . Recourse to that provision is also possible if the aim is
to prevent the emergence of such obstacles to trade resulting from the
divergent development of national laws. However, the emergence of such
obstacles must be likely and the measure in question must be designed to
prevent them . . . ”98
This sets a threshold that is both low and imprecise. How can one falsify a
legislative claim that a measure genuinely improves conditions, or that
differences have a direct effect or cause significant distortions of competition,
or, in the case of “preventive harmonization”, that the emergence of obstacles
is likely? Moreover, it is revealing how in Vodafone the Court found the
required “likelihood” that divergent national measures would emerge was
confirmed by the explanatory memorandum to the proposal for the challenged
Regulation and by the impact assessment, while the harmonization of not only
retail but also wholesale charges was treated as valid by reference to the
Regulation’s own recitals.99 Vodafone is based on a high degree of mutual
reinforcement: the claims made by the EU’s legislative institutions are
uncritically accepted by its judicial institution. All that the legislature did
wrong in Tobacco Advertising was to fail to lard the Preamble to (annulled)
Directive 98/43 with appropriate vocabulary claiming a connection between
harmonization and market-making. Such an approach would lead one to
expect that Directive 2011/83 would survive any constitutional challenge that
it might face.
Perhaps it should. An internal market requires regulation of some matters
that might appear of purely local interest: it verges on the paradoxical to treat
matters as internal to a single Member State within an EU market that is itself
98. Case C-58/08, Vodafone, O2 et al. v. Secretary of State, [2010] ECR I-4999. See
generally annotation by Brennke, 47 CML Rev., 1793–1814.
99. Ibid., paras. 45, 47.
“internal”.100 Directive 2011/83’s Preamble asserts that the harmonization of

rules on contracts negotiated away from business premises will promote
cross-border purchasing “in particular in border regions”. This is possibly
true. And even a small and no more than modestly plausible contribution to the
construction of the internal market seems to be enough to satisfy the Court.
Article 5(1) TEU’s principle of conferral, viewed in the particular context of
market-making pursuant to Article 114 TFEU, is in practice converted into a
functionally broad legislative competence which, when asserted, is based on
claims inapt for judicial falsification. But this design is the Treaty’s own.
A legislative competence that exists need not be exercised: this is plain from
Article 5 TEU. If relying on the possibility that harmonization of laws
governing off-premises contracts may promote inter-State trade in border
areas is enough to lift Directive 2011/83 over the threshold of Article 114
TFEU, one might wonder whether that is enough to bring the measure into
conformity with the principles of subsidiarity and proportionality. According
to current legislative and judicial practice the answer is clear – yes, it is.
Directive 2011/83’s Preamble offers the standard wholly perfunctory claim of
fidelity:
“(65) Since the objective of this Directive, namely, through the
achievement of a high level of consumer protection, to contribute to the
proper functioning of the internal market, cannot be sufficiently achieved
by the Member States and can therefore be better achieved at Union level,
the Union may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in order to achieve that
objective.”
This is echoingly empty rhetoric, but the Court has no evident appetite for
disagreeing with such claims, however thinly reasoned. In R v Secretary of
State ex parte BAT and Imperial Tobacco101 it found that a measure of
harmonization was designed to remove the barriers to trade caused by
inter-State regulatory differences and that such an objective could not be
sufficiently achieved by the Member States acting individually. This
100. For a contrary view see Twigg-Flesner, “Time to do the job properly – The case for a
new approach to EU consumer legislation”, 33 JCP (2010), 355; Tonner, “Das Grünbuch der
Kommission zum Europäischen Vertragsrecht für Verbraucher und Unternehmer”, (2010)
EuZW, 767.
101. Case C-491/01, R v. Secretary of State ex parte BAT and Imperial Tobacco, [2002]
ECR I-11543.
reasoning, adopted consistently since,102 makes it exceedingly difficult to

imagine any circumstances in which the EU is competent to adopt common
rules but would violate the principle of subsidiarity in so doing. Vigorous
arguments have been advanced in favour of a more intensive proportionality
review103 but the Court prefers a deferential approach.
Judicial anxiety to protect legislative discretion is likely based on an
assumption that political processes offer the (more) legitimate source of
effective control on legislative (over-) ambition. National Parliaments were
empowered by the Lisbon Treaty to exercise a defined and confined power of
review – but the politics of subsidiarity is another story.104
7. Maximum harmonization
Article 4 of Directive 2011/83 concerns Level of harmonization. It provides

that “Member States shall not maintain or introduce, in their national law,
provisions diverging from those laid down in this Directive, including more or
less stringent provisions to ensure a different level of consumer protection,
unless otherwise provided for in this Directive”. This is maximum
harmonization.
The fear of inter-State regulatory fragmentation lies at the heart of the shift
to maximum harmonization. But the Directive still allows specific options.
Their fragmenting potential is controlled by Article 29 on Reporting
requirements, which requires a Member State making use of any of the
available options105 to inform the Commission, which shall in turn make that
information available to consumers, traders, other Member States and the
European Parliament. Furthermore, in this vein of containing regulatory
fragmentation, the sole concession which the Commission was able to extract
from a legislative process that was determined to adhere to the minimum
102. E.g. Joined cases C-154 & 155/04, Alliance for Natural Health, [2005] ECR I-6451,
paras. 99–108; Vodafone, cited supra note 98, paras. 72–80.
103. Davies, “Subsidiarity: The wrong idea, in the wrong place, at the wrong time”, 43
CML Rev. (2006), 63.
104. See e.g. Kiiver, “The early-warning system for the principle of subsidiarity: The
national Parliament as a Conseil d’Etat for Europe”, 36 EL Rev. (2011), 98; Cygan, “The
Parliamentarisation of EU decision-making? The impact of the Treaty of Lisbon on national
Parliaments”, 36 EL Rev. (2011), 480. The 2008 Commission proposal on a Consumer Rights
Directive was attacked for violation of the subsidiarity principle by the French Senat, which
criticized in particular the abandonment of the minimum model: <www.senat.
fr/europe/subsidiarite/10_12_2008/Fiche3.pdf>. The final text of Directive 2011/83 was not
the subject of scrutiny, since the procedure does not allow direct national Parliamentary
involvement after revision of the original proposal.
105. Arts. 3(4), 6(7), 6(8), 7(4), 8(6) and 9(3).
model for harmonization of unfair terms and consumer sales was a tiny
modification to Directives 93/13 and 99/44. By virtue of Articles 32 and 33 of
Directive 2011/83 they are amended to impose relatively elaborate obligations
on Member States to advise the Commission of rules they choose to introduce
that are stricter than those mandated by the EU texts. Here too the Commission
must then make that information available to consumers, traders, other
Member States and the Parliament.
The Commission’s strong policy preference in favour of maximum
harmonization is driven by an assumption that minimum harmonization leads
to a fragmented pattern of laws, because Member States regularly and in
different ways take advantage of their preserved competence to apply stricter
rules. This reasoning runs through the contract law review initiated in 2001,
but, as explained above, it was not enough to sustain the weight of ambition in
the 2008 Proposal. Directive 2011/83 is a measure of maximum
harmonization – but that comes at the expense of a radical curtailment in its
material scope. The core lesson is that choice of model of harmonization is not
a technical matter, but instead one that is critical to the distribution of
regulatory responsibility between the EU and its Member States and therefore
to the shaping of the internal market as a contested exercise in combining
deregulation and re-regulation. And there are limits to what is politically
palatable in the name of “coherence”.
This section picks out three points of tension in the debate. Its thematically
binding argument is that there is no simple basis to favour minimum over
maximum harmonization, or vice versa. A balanced assessment of applicable
costs and benefits is required. In the field of contract law the Commission
stands accused of a partial account that inflates the case in favour of maximum
over minimum harmonization. And, a deeper critique, it over-estimates the
value of doing things in common. It is too wedded to “coherence”.
7.1. Determining the material scope of an EU measure
Under a régime of minimum harmonization, one may tolerate rough edges

where the EU-sourced rules touch established domestic rules, because the
latter, even if falling within the material scope of the EU measure, may be
applied even if stricter than those mandated by the EU. A maximum régime is
far more challenging. Implementation requires that scrupulous care be
directed at determining the precise boundaries of the measure’s material
scope, for within it – but only within it – it is incumbent on national authorities
to cleanse the national legal order of any provision that is more (or less)
protective than the EU standard. If a minimum model is replaced by a
maximum model, then even if there is no alteration in the substantive content
of the harmonized régime at EU level, there is nonetheless a profoundly

significant change in the nature of the obligation imposed on the Member
States. If the substantive content of the EU régime is altered, then
implementation costs at national level increase still further. So an embrace of
maximum harmonization may cause depreciation in standards of protection
previously asserted in some Member States (the attack on the 2008 Consumer
Rights Directive was partly motivated by that concern). It may also sharpen
the separation of the area of national law that is subject to maximum
harmonization from other areas of national law which are marked by
analogous concerns and techniques but which escape the lock-in of
“Europeanization” (this too was an anxiety triggered by the 2008 proposal,
which would have made more concrete and inflexible the lines of consumer
contract law, and it fuels a complaint that enhanced “coherence” at EU level
may cause damaging incoherence at national level). But these connected
concerns – lowered standards, destabilized national law – arise only once the
material scope of the measure is settled. And it is too often overlooked how
tricky – and therefore costly – that may prove.
In Directive 2011/83, Article 2’s definitions and Article 3’s exclusions are
important in drawing attention to the heightened sensitivity paid to the
material scope of a régime of maximum harmonization (Section 4 above).
Typically, however, it is to the Preamble that one must turn to find elaboration
of murky definitional points that caused trouble in drafting. Recital 15 is a nice
illustration. The Directive “should not harmonize language requirements
applicable to consumer contracts”, which means that “Member States may
maintain or introduce in their national law language requirements regarding
contractual information and contractual terms”. This is close to Article 6(7)
which stipulates that “Member States may maintain or introduce in their
national law language requirements regarding the contractual information, so
as to ensure that such information is easily understood by the consumer”. In
strict terms this is no more than a way to secure compliance. But it is easy to
see how language requirements asserted at national level may fall
uncomfortably close to the edges of Directive 2011/83’s material scope.
Heaps of examples could be assembled from the sweep of EU legislative
practice, but Directive 2005/29 on unfair commercial practices106 provides a
good one. Treatment of matters of “taste and decency”, which varies widely
among the Member States, is left outside the Directive’s scope, according to
its Recital 7. The radical implications of the vertical transfer of regulatory
competence from national to EU level which is at stake under the chosen
maximum model has here impelled the Member States to include ambiguous
provision designed to reflect, if not fully to allay, fears about the destabilizing
effect of EU measures on national policy choices. It is far from clear when a

measure is directed at “taste” or “decency” and when is it associated with
“ordinary” commercial objectives.107
7.2. The role of the Court
Ultimately it falls to the Court to provide an authoritative interpretation. It is

sometimes overlooked that it is not simply the EU’s legislative but also its
judicial institutions that are empowered by the vertical transfer of authority
consequent on legislative harmonization. The Court can expect to be asked to
decide cases on the interpretation of the content of the harmonized régime.
But it is also faced with more constitutionally delicate questions concerning
its material scope. The more ambiguous the legislative text, the greater the
power delegated to the Court.108 And just as maximum, rather than minimum,
harmonization is the most radical possible re-distribution of competence in
favour of the EU’s political institutions, so too a choice in favour of maximum
harmonization is the most significant means to empower the Court. The
practical significance of EU law in litigation before national courts and
consequently the preliminary reference workload of the Court in Luxembourg
is far greater where maximum rules are at stake, because it is EU law – and EU
law alone – that provides the answer. No surprise, then, that the unfair
commercial practices Directive is generating an alarming workload for the
Court of Justice,109 in consequence on, first, its inherent “internal”
imprecision (how really to work with “unfairness” as a common standard?),
second, its ambiguous material scope and, third, the underlying point that since
it is a maximum measure it is not open to Member States to conclude, as they
may conclude with unfair terms in consumer contracts or consumer sales, that
a matter is banned under national law so discovery of the demands of EU law
lacks practical bite.
As with adventurous rulings on content, so too with rulings on material
scope: the wider the Court places the scope of the EU measure the more it
107. Cf. Micklitz, Smith and Ohr Røhdam (Eds.), “New challenges for the assessment of
fairness in a common market”, EUI Law Working Paper 2010/21, available at
<cadmus.eui.eu/handle/1814/18754>.
108. Comparative exploration escapes the scope of this paper, but exactly this pattern may
be found in any divided power system. E.g. in May 2011 the US Supreme Court split 5-3 in
Chamber of Commerce of the USA et al. v. Whiting et al. 563 U.S. _ 2011 on what “licensing”
means: this determined whether Arizona could supplement federal law applicable to employers
who hire unauthorized aliens with additional sanctions, specifically the revocation of a licence.
The majority held it could, doubtless leading to variation across the 50 states – a point on which
the minority relied in reaching the opposite conclusion.
109. Directive 2005/29’s deadline for transposition was June 2007: by end 2011 7 rulings
had been delivered, 8 more references were pending.
tends to destabilize national law (and the higher it piles its own workload).
This is however the Court’s preferred interpretative approach. It has already
taken the opportunity to insist that Directive 2005/29 “is characterized by a
particularly wide scope ratione materiae which extends to any commercial
practice directly connected with the promotion, sale or supply of a product to
consumers” and it has cited pursuit of a high level of consumer protection as
a reason to avoid a restrictive interpretation of Directive 2005/29.110 A more
boldly “coherent” EU law may render national law unexpectedly (and,
pending reform at EU level, irretrievably) incoherent.
In some circumstances of regrettable but politically unavoidable ambiguity
the very question whether the harmonization is maximum or minimum in
character will be asked of the Court. The harmonized rules affecting the
economic interests of consumers are in the main drawn with precision by the
legislature. Such design places the Court on a tight rein. But the Product
Liability Directive111 reveals what may happen in the case of less precise
drafting. Article 13 stipulates that the Directive “shall not affect any rights
which an injured person may have according to the rules of the law of
contractual or non-contractual liability or a special liability system existing at
the moment when this Directive is notified”. In González Sánchez the Court,
faced with rights afforded to consumers under pre-existing Spanish law which
were more extensive than those available under the rules introduced to
transpose the EU Directive, determined that Article 13 did not permit the
Member States the possibility of maintaining a general system of product
liability different from that provided for in the Directive.112 The Court’s ruling
heavily emphasizes the function of the Directive in levelling the commercial
playing field and provides a vigorous reminder that identifying the allocation
of regulatory responsibility post-harmonization is highly significant in
ascertaining the permissible protective scope of national consumer law.113 The
issue is by no means specific to consumer protection: the Court’s decision in
Dirk Rüffert,114 refusing to allow a host Member State to apply stricter rules of
worker protection than those mandated by Directive 96/71 on Posted Workers,
110. Mediaprint, cited supra note 92, para 21; Case C-122/10, Ving Sverige AB, judgment
of 12 May 2011, nyr, paras. 29, 39.
111. Directive 85/374, O.J. 1985, L 210/29.
112. Case C-183/00, González Sánchez, [2002] ECR I-3901.
113. This result aligns with the Commission’s preferences, and it has accordingly been
resistant to Council entreaties to consider proposing reform: see Weatherill, “Maximum versus
minimum harmonization: Choosing between unity and diversity in the search for the soul of the
internal market”, in Nic Shuibhne and Gormley (Eds.), Festschrift John Usher (OUP, 2012),
ch. 10.
114. Case C-346/06, Dirk Rüffert, [2008] ECR I-1989.
reveals a similar interpretative intolerance of regulatory diversity that impedes

integration.
7.3. “Coherence”
Such prevailing definitional ambiguities mean that the costs of

implementation at national level of maximum measures are high and yet are
routinely ignored by the Commission in its review of contract law (and
elsewhere). But a deeper objection to maximum harmonization holds that in
any event “coherence” is an over-rated virtue. It puts in place a troublingly
inflexible EU-level régime which locks out regulatory diversity and
experimentation at national level. Maximum harmonization may make the EU
rules look much more “coherent” but, at national level, significant
dismantling of established rules that are found to fall within the material scope
of the EU measure may be required, to the detriment of accumulated local
preferences, and that exclusion is permanent – at least until such time as the
EU régime is altered. Coherent EU law comes at a cost: incoherent
national law.
The issue is whether the costs outweigh the benefits, or vice versa. And this
is a difficult policy choice. It demands a sectoral inquiry. It demands
engagement with the economics of federalism.115 And it goes beyond the
scope of this article. But there are virtues in minimum harmonization which
are regrettably too readily excluded by the Commission in its review of
contract law. European Air Transport SA is not a consumer law case – it
concerns air transport.116 But it is vividly illustrative of the competing
questions about regulatory design. The case turned on what are “operating
restrictions” which may be imposed (at Brussels airport) in conformity with
Directive 2002/30, and then what scope is left for stricter national measures.
Advocate General Villalón’s Opinion is a fascinating assembly of
interpretative techniques against maximum harmonization relating to the
need to balance transport policy and environmental protection. He also refers
to fundamental rights associated with protection of the environment and he is
wary of finding a “paralysis of State action” to do anything beyond that
mandated by the EU which would follow a finding that the measure is
maximum in nature. The Court simply addressed the definitional question of
whether there is an “operating restriction” and went no further, but the
115. See, in the present context, Gomez and Ganuza, “An economic analysis of
harmonization régimes: Full harmonization, minimum harmonization or optional
instrument?”, 7 ERCL (2011), 275. See also Eidenmüller, Faust, Grigoleit, Jansen, Wagner and
Zimmerman, “Towards a revision of the consumer acquis”, 48 CML Rev., 1077–1123.
116. Case C-120/10, European Air Transport SA, judgment of 8 Sept 2011, nyr.
Advocate General’s analysis is hugely appealing, and easily transplanted to

consumer policy and contract law. Under the maximum model of
harmonization, the EU – its legislature and, sometimes unexpectedly, its Court
too – always leads the way, to the exclusion of dialogue and learning.
Fragmentation of the internal market is admittedly a cost – but minimum
harmonization represents a realistic attempt to accommodate diverse national
tradition, scope for regulatory innovation and consumer expectation within
the process of integration. That is a benefit. Maximum harmonization involves
a sufficiently radical vertical re-distribution of regulatory competence to call
into question the very legitimacy of the EU’s lawmaking pretensions. The
more politically charged the subject matter – and contract law is already that –
the more sensitive the choice.
There is a strong case to be made for regarding maximum harmonization as
applicable only exceptionally, where its use has been carefully justified in
prevailing sector-specific conditions. The Commission’s 2008 proposed
Directive’s narrow market-making discourse of “coherence” was never
adequate justification for such a bold measure and it paid the political price.
Directive 2011/83 has been mocked in this paper for its hubristic title and
trivial content. On the latter count, this may be churlish. Aspects such as the
new standard form for withdrawal (see 5.2.1 above), updating information and
other rules to cope with digital content (5.1, 5.2.1, 5.2.7) and the attack on
“hidden costs” (5.4 above) are helpfully protective and fit readily into the
EU’s thematic concern for the inattentive consumer. And shorn of earlier more
ambitious aims the Directive is a good example of how a measure of maximum
harmonization should look: modest.
8. Conclusion
More than a decade since the Commission initiated its review into the EU’s
role in contract law, the lesson that emerges from Directive 2011/83 on
Consumer Rights is that the narrative easily becomes garbled. The three-point
“coherence agenda” (Section 2 above) pursued by the Commission has proven
to carry limited political momentum. The detail of the acquis is cleaned up but
only marginally;117 the drive to renovate the acquis under a maximum model
is confined to off-premises and distance contracts, while stern political
opposition ensures that unfair terms and consumer sales retain the minimum
model; no sophisticated use has been made of (the colourful range of)
available sources for improving the interpretation and application of common
117. On what still needs to be done, see Eidenmüller et al., “Towards a revision of the
consumer acquis”, 48 CML Rev. (2011), 1077.
principles, while the Court continues to lurk as a loose missile in the shaping
of common principles and generally applicable interpretation.
The Commission is changing track. Its October 2011 Proposal for a
Regulation on a Common European Sales Law118 is in part simply a recycled
version of what was rejected and discarded from the 2008 Proposal on
Consumer Rights in the negotiations that led ultimately to Directive
2011/83.119 However, its scope is much broader and, intriguingly, what is
proposed is not orthodox harmonization. Instead the Commission proposes a
so-called “optional instrument”: a second régime for each Member State
which would serve as an alternative to national contract law régimes.
Exploration of this latest initiative is a story for another day.120 One may
conclude that the Commission, wounded by the story told in this paper, has
decided to explore fresher forms of governance: an optional alternative to,
rather than harmonization of, domestic laws, the fate of which will fall for the
market to decide (and which might serve to nudge adjustment of national laws,
if found to be popular among contracting parties). It may, however, be
charitable to treat this as genuine engagement with new regulatory design as
opposed to opportunist unwillingness to accept that no means no. In a
November 2011 speech, Commissioner Reding was unable to resist sniping
that “opposition of consumer organizations across Europe” had sunk her
preferred maximum harmonization.121 The lesson goes unlearned.
As a radical campaign to challenge the fragmented character of the
legislative acquis the 2008 Proposal for a Consumer Rights Directive failed
miserably, principally because of the Commission’s determination to pursue
maximum harmonization. That would have generated a form of internal
market – but not one that is currently politically acceptable. As is
demonstrated by the modesty of Directive 2011/83, which contains the
material left over after the 2008 Proposal’s haircut, there is too much at stake
in contract law to induce political acquiescence in a complete transfer of
regulatory responsibility to EU level. And that is a generally applicable lesson:
pursuit of “coherence” in Europe must be weighed against the virtue of local
autonomy and the value of regulatory experimentation.
118. Proposal for a Regulation on a Common European Sales Law, cited supra note 41.
119. A point made indignantly by the Austrian Federal Council in a reasoned opinion
condemning the Proposal as incompatible with the subsidiarity principle: <www.
ipex.eu/IPEXL-WEB/dossier/document/COM20110635.do>.
120. Granting contracting parties more choice, reducing diversity and increasing certainty
is an “impossible conundrum”: Sefton-Green, “Choice, certainty and diversity: Why more is
less”, 7 ERCL (2011), 134, 136. And the stated legal base, Art. 114 TFEU (see section 6 supra),
seems implausible in the light of Case C-436/03, Parliament v. Council, [2006] ECR I-3733.
121. Speech in Warsaw, 10 Nov. 2011, available at <europa.eu/rapid/press
ReleasesAction.do?reference=SPEECH/11/742&type=HTML>.

The Consumer Rights Directive: How and Why A Quest For "Coherence" Has (Largely) Failed Stephen Weatherill

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Common Market Law Review 49: 1279–1318, 2012.

© 2012 Kluwer Law International. Printed in the United Kingdom.

THE CONSUMER RIGHTS DIRECTIVE: HOW AND WHY A QUEST

The adoption of a Directive on consumer rights in October 2011 sounds like a

2. The uneven road to Directive 2011/83

The Preamble to Directive 2011/831 is in the modern idiom: a wearily

2.1. The rise of the legislative acquis

1. Directive 2011/83 on consumer rights, O.J. 2011, L 304/64.

the internal market,9 electronic commerce,10 and distance marketing of

2.2. Three problems, one theme – “coherence”

which render it unfit for the purposes of underpinning a viable internal

23. E.g. on Directive 97/7, COM(2006)514, on Directive 99/44, COM(2007)210.

28. European Commission, Consumer Policy Programme 2002–2006, COM(2002)208,

convergence in national practice, a basis for legislative codification or even

2.3. “Coherence” contested

3. Consumer rights: From 2008 Proposal to 2011 Directive

The Commission’s review of the “consumer acquis” focused on eight

44. See supra note 22.

do the orthodox obligations of transposition fall upon the Member States.

found in the Report of the Parliament’s Committee on Economic and

Directives shortened by just one; maximum harmonization has been

Directive 2011/83 repeals and replaces Directive 85/577 on doorstep selling

of important decision-making powers to the Court.64 The material scope of

5.1. Chapter II: Information requirements

Chapter II, “Consumer Information for Contracts other than Distance or

5.2. Consumer information and right of withdrawal

Chapter III, entitled “Consumer Information and Right of Withdrawal for

5.2.1. Information requirements

67. See supra note 16.

standard provisions on enforcement and penalties are contained in Articles 23

5.2.2. Formal requirements

5.2.3. Right of withdrawal: Method, duration, effect

5.2.4. Right of withdrawal: Failure to notify

68. Recital 43 makes this claim.

governed by national law, but in a fascinating example of its zeal to

69. Heininger, cited supra note 20.

advocates general were different too. The Court is not a source of

to enlarge the scope of harmonization beyond the explicit terms of the

5.2.6. Ancillary contracts

79. Heininger, cited supra note 69.

5.3. The virtue and vice of pursuing wider “systematization”

There is a wider landscape inviting “systematization”, and although Directive

81. Draft Common Frame of Reference, cited supra note 36.

(4) A notice of withdrawal is timely if dispatched before the end of the

This is close to Directive 2011/83. Directive 2008/48 on credit agreements

contrast with treatment of similar issues in other Directives, DCFR and

88. See references made supra note 73.

but also requires it be applied to debar application of a national principle that

5.4. Other consumer rights

Chapter IV is entitled Other Consumer Rights. This is a misleadingly grand

5.5. The imperative nature of the Directive

Article 25 underlines the Directive’s protective concern. It provides that if the

Directive 2011/83 on consumer rights is based on Article 114 TFEU. It is,

“The cross-border potential of contracts negotiated away from business

94. As already noted in an editorial in this Review, addressing questions of competence in

“ . . . According to consistent case law the object of measures adopted on

“internal”.100 Directive 2011/83’s Preamble asserts that the harmonization of

reasoning, adopted consistently since,102 makes it exceedingly difficult to

Article 4 of Directive 2011/83 concerns Level of harmonization. It provides

7.1. Determining the material scope of an EU measure

Under a régime of minimum harmonization, one may tolerate rough edges

of the harmonized régime at EU level, there is nonetheless a profoundly

effect of EU measures on national policy choices. It is far from clear when a