Serbian Consumer Law

AuthorMateja Durovic,Christine Riefa
Published date01 December 2015
Date01 December 2015
DOI10.1177/1023263X1502200605
Subject MatterArticle
862 22 MJ 6 (2015)
SERBIAN CONSUMER LAW
Out with the Old, in with the New
C R* and M D**
ABSTRACT
Serbian consumer law has ben transformed over the last 10 years through the quick
succession of no less than 4 incar nation of the Law on Consumer Protection  rst introduced
in 2002 and reformed in 2005, 2010 and 2014.  e latest incumbent brings Serbian law
in line with Directive 2011/83/EU on Consumer Rights. is article assesses the way in
which consumer law has been implemented in the Serbian legal system and a ssesses its
e cacy and prospect of success in future years. It argues that while the new law o ers all
the hallmark of a fully functioning legal s ystem of protection, Serbian consumer law lacks
the teeth needed on the ground to make it a reality.  is can be explained by a series of
factors including resistance towards the recognition of consumer as an autonomou s branch
of the law and non-application of consumer law b y the Serbian courts, amongst others.
Keywords: consumer law; development; Europea nisation of private law; Serbia; Western
Balkans
§1. IN T RODUC T IO N
Consumer law has developed to form a coherent area of the law in most European
countries. In a large number of countries, it is the subject of specia list codes or speci c
codifying laws1 or has been integrated in a civ il code.2 Consumer law is taught at
* Reader in Consume r Law, Brunel Law School, Brunel Univer sity London, UK.
** Assistant Pr ofessor, School of Law, City University of Hong Kong.
1 For example France (1993), Italy (1998), Luxembourg (2011). Portugal (2012), Spain (2012).
2 In Germany, consumer law is part of the Civil Code (Bürgerliches Gesetzbuch). In the Netherlands,
consumer law is al so integrated i n the New Civil C ode (Burgerlijk Wetboek). For more details,
see M.W. Hesselink, ‘ e ideal of cod i cation and t he dynamic s of Europeanis ation:  e Dutch
Experience’, 12European Law Journal (200 6), p.279–305. Note that in Germany, disc ussions amongst
Serbian Consu mer Law
22 MJ 6 (2015) 863
universities and is the subjec t of numerous textbooks.3 Most importantly, it has a
clear scope: the protection of the wea ker party – the consumer – in its relations with
businesses (although de nitions may vary).4 But while consumer protection is now
at the forefront of policy development in the EU5 this state of play is the result of a
long and drawn out process of politica l negotiations and incremental changes alongside
national systems of protection. Indeed , the Treaty of Rome 1957 remained silent on the
protection of consumers with only a few i ndirect mentions.6 As a resu lt, the European
Community had no constitut ional basis for act ion in thi s area. It was in the early 1970s
that political momentu m started to gather, in the wa ke of the Molony Committee
Report in the UK, t he Kennedy Speech in the US7 and a number high-pro le case s
concerning the safet y of consumers, most notably the  a lidomide tragedy in which the
drug given to mothers to a lleviate morning sickness resulte d in babies born with severe
birth d efects. 8 Political momentum paved the way for const itutional acceptance and
recognition,  rst in t he Single European Act i n 1986 where consumer law became an
integral part of the policy concerning the completion of the Single European Market,9
and subsequently in the introduction of a speci c consumer protection chapter in the
academics focu s on a reform and a stand-a lone code. See on t his topic H. Rösler, Europäisches
Konsumentenve rtragsrecht/ Gr undkonzept ion, Prizipi en und Fortentw icklung (C.H. Bec k, 2004); H.-
W. Micklitz, ‘Do C onsumers and Businesse s Need a New Architecture of Con sumer Law – A thought
Provoking Impul se’, 32 Yearbook of European Law (2013), p.266. For a v iew against such codi  cation,
see E. Hondius, ‘Again st a New Architecture of C onsumer Law – A Traditiona l View’, in K. Purnha gen
and P. Rott (eds.), Varieties of European Econom ic Law and Regulat ion, Liber Ameri cium for Hans
Micklitz (Springer, 2014), p.599.
3 G.F. Woodro e and R. Lowe, Con sumer Law and Prac tice (98th edition, Swe et & Maxwel l, 2013); I.
Ramsay, Consumer Law & Policy, Text and Mater ials on Regulating Consum er Markets (3rd ed ition,
Hart Publis hing, 2012); G. Howells and S. Weat herhill, Consumer Protection Law (2nd e dit ion , As hgat e,
2005). Simila r textbooks ex ist in the are a of European consu mer law, see for example, N. Reich e t
al., European Consumer Law (2nd edition, Intersentia, 2 014); H.-W. Micklitz, J. Stuyck a nd E. Terryn,
Cases, Mate rials and Texts on Consu mer Law (Hart, 2010).
4 C. Riefa, ‘Codi cation:  e Future of Engli sh Common Law?’, 1 EuCML (2015), p.1–2, 12–20.
5 Commission Communication, A European Consumer Agenda – boosting con dence and growth,
COM(2012) 225  nal, p.1.
6 See for example, Ar ticle39 and 40 of the Treaty of Rome, w hich concerned ensurin g reasonable prices
in delivery to con sumers and excluding a ll discri mination between pro ducers or consumers in th e  eld
of agricultural policy.
7 In 1959 in the UK, t he Molony Committee on Cons umer Protection wa s charged to consider and re port
what changes needed to be made to protect consumers.  e re port, published in 1962, w as intended to
provide a foundation for po licy-making and i s at the origin of modern leg islative changes in c onsumer
law.  e report identi ed an imbalance bet ween consumer and suppliers, due to e volving methods of
manufactu re that was to serve as a ba sis for intervention not only in t he UK, but also in the USA w hen
in 19 62 pres ident Kenne dy fa mousl y dec lare d tha t ‘cons umer s by de nition include us a ll’ in his sp ecial
message to Congress.
8 For more on the development of Europea n Consumer Policy, see L. Notta ge, K. Tokeley and C. Riefa,
‘Comparative cons umer law reform and econom ic integration’, in J. Malb on and L. Nottage (eds .),
Consumer Law & Po licy in Australia & New Zea land ( e Federation Press, 2 013), p.52–94.
9 On this point , see H.-W. Micklitz, 32 Yearbook of European Law (2013), p.266.

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