EU CONSUMER

LAW AND POLICY

Dr. Konstantinos Sidiropoulos

Lecture 1
Introduction to EU Consumer Law and the Evolution of
Consumer Policy in the EU
 Outline of Lecture
Part 1 – Part 3 –
Introduction Current shape of EU consumer policy
Outline of the course Lisbon Treaty
Reading material Policy priorities

Part 2 – Part 4 –
EU consumer policy in context Introduction to techniques of consumer
Development of EU competence in the field policy
of consumer protection Critical assessment
PART 1
 Introduction
§ No prior knowledge of consumer law is required
§ A basic understanding of EU law will be helpful, esp.:
ü the constitutional relationship between the EU and the MS;
ü the free movement law; and
ü the scope of legislative competence at EU level and the conditions that govern its exercise (esp.
the principles of subsidiarity and proportionality)
§ Good EU law textbooks include:
ü Weatherill, Cases & Materials on EU Law
ü Craig and de Búrca, EU Law: Text, Cases, and Materials
ü Wyatt and Dashwood's European Union Law
§ Course syllabus
§ Attend all lectures & tutorials and read ahead
 Outline of the Course
SYLLABUS TEACHING SCHEME & EVALUATION

§ Historical background and development of EU competence § Course syllabus

§ Judicial and legislative contribution § 9 lectures – Wednesday 18:00-21:00
§ Legislation affecting contract formation (e.g., Dir. 2011/83 § Tutorial – primarily dedicated to problem solving and policy
on consumer rights) discussion; complement discussion in the lectures (date TBC)
§ Legislation regulating the content of consumer transactions § Essay to be submitted 48 hours ahead of the tutorial
(e.g., Dir. 93/13 on unfair terms in consumer contracts; Dir.
99/44 on certain aspects of the sale of consumer goods and § Final exam
associated guarantees)
§ Product liability
§ Advertising and marketing law
§ Product safety
§ Enforcement, access to justice, and redress
§ The constitutional dimension
 Reading Material
COURSE BOOKS
§ Stephen Weatherill, EU Consumer Law and Policy
(Elgar Publishing 2013)
Or: Howells, Twigg-Flesner and Wilhelmsson,
§
Rethinking EU Consumer Law (Routledge 2018)
à Both books have almost everything you need for
our lectures on consumer protection
à An introductory starting-point: Weatherill,
‘Consumer Policy’ in Craig and de Burca (eds), The
Evolution of EU Law (OUP 2011)
à Up-to-date information: http://recent-
ecl.blogspot.co.uk/
ADDITIONAL SOURCES
§ Refer to the course syllabus – I provide references
to important literature, legislation, policy
initiatives, case law, etc, which would otherwise
not be so easy for you to assemble because the
general EU law textbooks tend not to cover
consumer law in any depth.
§ Often where there are multiple sources for a
particular topic you should only read one or two
among them – you can’t read everything, and you
don’t need to.
§ Lectures will provide the structure and the
necessary level of detail.
§ Tutorial: TBC
PART 2
 Introductory Remarks
v How consumer policy fits into the overall internal market programme?
Ø Free movement law as a technique of consumer policy à market integration itself a form of consumer policy
Ø Soft law initiatives at EU level
‘indirect’ consumer policy at EU level
Ø Harmonisation of national laws
Ø Constitutional framework - consumer protection as a conferred competence of the EU:
Maastricht Treaty (1993): 1st formal recognition as an explicit legislative competence
Article 169 TFEU – deeply misleading
Article 114 TFEU – the principal source of EU legislative measures affecting the consumer has always been, and remains,
harmonisation
v Constitutional sincerity?
v Allocation of responsibility: fragmented and has changed over time
Ø For a long while the Directorate-General for Health and Consumers (‘SANCO’) was the most significant
Ø Today the two main consumer-relevant Directorates General are for Justice and Consumers and for Health and Food Safety
Ø Consumer law rubs up against other areas: internal market is also relevant (and agriculture, financial services, competition, etc).
We have to draw lines and stop somewhere – but we’re all consumers, and in a sense everything is consumer policy
 EU Consumer Policy in Context
v Judicial and legislative routes to market-making: consumer policy as a case study
Ø The more the EU Courts do to assess and to set aside national trade barriers, the less is expected
of the legislature, and vice versa – the Court has taken on sensitive questions associated with
justification of national trade barriers that would have belonged to assessment by the political
institutions under Article 114 TFEU had the Court been more timid (think of Cassis de Dijon)
Ø The Court’s stance is not static (remember Keck and the cases that followed), so the margin
between the judicial and the legislative contribution is not static either
Ø Consumer policy as a case study:
- national rules of consumer protection may act as trade barriers – Cassis de Dijon itself
- setting aside such rules opens up the market to the advantage of the consumer (more
competitive markets, wider choice, etc)
- market integration is a form of consumer policy
 EU Consumer Policy in Context
v Judicial and legislative routes to market-making: consumer policy as a case study
Ø Consumer policy as a case study:
- Case 178/84 Commission v Germany [1987]: ‘[the legislation of a MS must not] crystallize given consumer habits
so as to consolidate an advantage acquired by national industries concerned to comply with them’
- Case C-154/89 Commission v France [1991]: showing the importance of consumer choice in the market for
services
- [EU competition law too serves this end] – Joined Cases C-468/06 to C-478/06 Sot. Lelos kai Sia [2008]: parallel
trade is treated favourably because of the benefits it brings to the ultimate consumer by attacking market-
partitioning constructed by private commercial practices]
à The Court may conclude that the consumer interest in open markets prevails over the consumer
interest in local regulation, which may involve choosing between different sources of consumer policy
à How to best serve the consumer interest: national consumer law versus EU consumer law
Controversial: AG Mancini in Case 407/85 Drei Glocken CoJ in Case 407/85 Drei Glocken
 EU Consumer Policy in Context
v Judicial and legislative routes to market-making: consumer policy as a case study
Ø Consumer policy as a case study:
- Deep cut inflicted on national regulatory autonomy by the Court’s broad reading of Articles 34 & 56 TFEU
- Scope of harmonisation programme (common rules for a common market) reduced
- But in some cases national rules are justified
- Legislative harmonisation to compensate for the inadequate reach of judicial means to complete the
process of integration
àWhere the national rules that are harmonised are rules of consumer protection, the result is
a species of EU consumer protection
§ ‘Dual function’: integrates/deregulates and re-regulates the market
§ Article 169(2)(b) TFEU: consumer- specific competence to legislate
§ BUT the main source of EU legislation affecting the consumer is the harmonisation provisions
 Development of EU Competence in the
Field of Consumer Protection
TREATY OF ROME
v Consumer interest largely hidden –assumed rather
than explicit
v Incidental references to the consumer
v Market integration assumed to benefit the consumer
by generating a more efficient EU-wide market
v Constraints of (what is now) Article 5 TEU’s principle
of conferral
‘SOFT LAW’ AND ACTION PLANS
v Growth of a potitical commitment
v Paris Summit 1972 – Resolution of 14 April 1975 on a preliminary
programme for a consumer protection & information policy
Point 3 of the Annex sums up consumer interests in a statement of 5
basic rights: (a) the right to protection of health and safety; (b) the right
to protection of economic interests; (c) the right of redress; (d) the right
to information and education; and (e) the right of representation (the
right to be heard)
But: Point 4 of the Annex provides that consumer policy will be
amplified '[...] by action under specific Community policies such as the
economic, common agricultural, social, environment, transport and
energy policies as well as by the approximation of laws, all of which
affect the consumer's position [...]’ à CONFERRAL
v 2nd Council Resolution in 1981, the 3rd in 1986…
v Constitutional deficiency persisted until Maastricht
 Development of EU Competence in the
Field of Consumer Protection
CONSUMER PROTECTION PRE-MAASTRICHT MAASTRICHT, AMSTERDAM AND NICE

v Treaty remained defficient v Maastricht Treaty (1993): Consumer protection

v The gap was not as wide in practice
inserted to (what was then) the EC Treaty as a
formal legislative competence
v Bridge: EU’s competence to harmonise law in
pursuit of market integration, i.e. Article 129a
harmonisation acted as an indirect consumer v Amsterdam and Nice Treaties: minor
policy adjustments were made
Heartland of harmonisation: Article 114 TFEU Article 153 EC
v The EU developed a form of consumer policy v It is now Article 169 TFEU (Lisbon Treaty)
v ‘Competence creep’? v A breakthrough but the central role of
harmonisation remained
PART 3
 Current Shape of EU Consumer Policy
The Treaty of Lisbon
v Article 12 TFEU: ‘horizontal’ or ‘mainstreaming’ clause
Ø previously embedded in the Title on Consumer Protection
v Article 169 TFEU: entitled Consumer Protection
Ø no change of substance – the adjustments were cosmetic (‘Union’ instead of ‘Community’)
Ø the promotion of the clause to the early part of the TFEU might be interpreted as strengthening its impact still further
v Article 38 EUCFR:
Ø binding provision – see Article 6 TEU
Ø becoming rhetorically prominent – e.g. ‘A European Consumer Agenda - Boosting confidence and growth’ COM (2012) 225
refers to it on p.2, and appears in some Court judgments, though largely as window-dressing (e.g. Case C-12/11
McDonagh v Ryanair [2013])
Ø confirms past legislative and judicial practice, rather than marking a new direction

v Article 4(2)(f) TFEU: consumer protection as a shared competence

Ø not previously made explicit, but it doesn’t seem to change anything in practice
 Current Shape of EU Consumer Policy
Article 169(2) envisages two different routes to consumer policy-making. The two procedures are very different.

Article 169(2)(a) Article 169(2)(b)

v Cross-reference to Article 114 TFEU (legislative
harmonisation in the service of the internal market)
v Embraces consumer protection as an explicit EU
competence which is connected to harmonisation
policy and market integration
v The base authorising the adoption of consumer
protection legislation originally created at Maastricht
v Does not explicitly exclude harmonisation
v It is narrow, confined to ‘measures which support,
supplement and monitor the policy pursued by the
Member States’
v Sets minimum EU standards
v Has hardly been used at all

à Important in formal terms but has not altered the central role of harmonisation in giving shape to EU consumer policy
 Current Shape of EU Consumer Policy
Current policy priorities
v EU Consumer Policy Strategy 2007 – 2013: empowering consumers, enhancing their welfare, effectively protecting them
Ø strong emphasis on the benefits to the consumer of the internal market, including discussion of how lack of confidence acts as an obstacle to the integration of
retail markets
Ø three objectives: empowering consumers, enhancing welfare and protection from risks that consumers cannot cope with individually
Ø five priorities: better monitoring of consumer markets and national consumer policies; better consumer protection regulation; better enforcement and redress;
better informed and educated consumers; and putting consumers at the heart of other EU policies and regulation
v A New Strategy for the Single Market: at the service of Europe’s Economy and Society (the ‘Monti Report’ of 2010)
Ø tangential reference to consumers: see pp. 25, 41 (‘empowering’) and 47
v Single Market Act: twelve levers to boost growth and strengthen confidence, working together to create new growth (2011)
Ø includes as one of its twelve levers Consumer Empowerment
v A European Consumer Agenda - boosting confidence and growth (2012)
Ø four key objectives: improving consumer safety; enhancing knowledge; improving implementation, stepping up enforcement and securing redress; aligning rights
and key policies to economic and societal change
v The Single Market Act II, Together for New Growth (2012)
Ø ‘four drivers for new growth’, including consumer confidence
Ø twelve levers and key actions BUT only one explicitly mentions the consumer – ‘4: […] make cross-border markets that benefit consumers a reality’- but others are
relevant to the consumer (e.g., ‘11: Improve the safety of products circulating in the EU […]’)
Ø ECOSOC’s criticism in 2013: the focus of consumer policy should be wide and not an ‘appendix to business policy’ & the ‘empowerment’ model is inadequate
 Current Shape of EU Consumer Policy
Current policy priorities
v Regulation 254/2014 on a multiannual consumer programme for the years 2014 – 2020 (legal base: Article
169 TFEU)
Ø the connection of the consumer to an agenda of empowerment and growth is clear
Ø Article 2, General Objective: ‘The general objective of the Programme is to ensure a high level of consumer protection, to
empower consumers and to place the consumer at the heart of the internal market, within the framework of an overall
strategy for smart, sustainable and inclusive growth. The Programme will do so by contributing to protecting the health,
safety and the legal and economic interests of consumers, as well as to promoting their right to information, education
and to organise themselves in order to safeguard their interests, and supporting the integration of consumer interests into
other policy areas. The Programme shall complement, support and monitor the policies of Member States.’
Ø four objectives: safety, information and education, rights and redress, enforcement
v Upgrading the Single Market: more opportunities for people and business (2015)
Ø connects the consumer interest to the functioning of the internal market and mentions the consumer often
Ø the rise of online trade has led to consumers being discriminated against on the basis of their nationality or place of
residence (‘geo-blocking’ in the ‘digital single market’).
Ø a Regulation (based on Art 114 TFEU) was proposed by the Commission, and adopted in 2018 - Reg 2018/302
 Current Shape of EU Consumer Policy
Current policy priorities
v New Deal for Consumers (2018)
Ø consisting of a Communication and two legislative proposals, both concerned in particular with improved enforcement
Ø the Communication emphasises the need to: modernise the consumer acquis; improve redress and enforcement; pursue
international co-operation; tackle the problem of ‘dual quality’ goods in the internal market; and to raise awareness of
consumer law
Ø empowering consumers; promoting fairness; building trust within the Single Market; ensuring that there are no second
class consumers in the EU, and that European businesses operate in a regulatory framework fit for today’s challenges and
offering a level playing field across the internal market
Ø Directive 2019/2161 on better enforcement and modernization of consumer protection rules was adopted (based on
Article 114 TFEU)
v New Consumer Agenda: strengthening consumer resilience for sustainable recovery (2020)
Ø five priority areas: consumer empowerment in both the green and digital transitions; protecting vulnerable consumers;
enforcement of consumers’ rights and international cooperation
Ø take into account the impact of the COVID-19 pandemic on consumers
Ø ‘the EU has a solid consumer protection framework developed over many years and recently enhanced through several
legislative initiatives from which consumers in the EU will benefit in the years to come.’
PART 4
 Introduction to Techniques of Consumer Policy
v Free movement law and Article 114 TFEU
v Article 169 TFEU
v Article 12 TFEU
v Rhetorical commitments in policy texts
q Everything is consumer protection…!
EU consumer policy is about:
v benefits to the consumer from the internal market
v consumer empowerment/confidence
v protection of vulnerable consumer
Regulatory techniques
v pre-contractual information disclosure & post-
agreement cooling-off periods/right to withdraw
v invalidation and deletion of offending clause
Models
v minimum harmonisation
v maximum harmonisation
 CRITICAL ASSESSMENT
v ‘Competence creep’
Ø Conferral
Ø Subsidiarity
v National consumer law versus EU consumer law
Ø uniformity or diversity
Ø judicial interpretation and/or legislative harmonisation
Ø minimum or maximum harmonisation
v ‘Empowering’ consumers
Ø what vision of consumer does it suggest?
Ø is it a realistic view of consumer?
Ø does it have a political bite too?
v Commission’s policy
Ø pursued objectives – sensible?
Ø proposed measures – concrete?
v Is there an EU consumer law?