The Transformation of Consumer Law in the EU in the Last 20 Years
| DOI | 10.1177/1023263X1302000304 |
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
| Author | Jules Stuyck |
| Subject Matter | Article |
20 MJ 3 (2013) 385
THE TRANSFORMATION OF CONSUMER
LAW IN THE EU IN THE LAST 20 YEARS
J S*
ABSTRAC T
In the early years consumer protection wa s an exception to the logic of the internal market .
Since the case of Dassonville in 1974, the CJEU has recognized the power of Member
States to restrict free movement by reasonable measures in the interest of consumers (see
in particular Cassis de Dijon in 1979). Harmonization of consumer laws will enhance
the condence of consumers and businesses and hence contribute to the internal market
programme. So far, fundamental rights have played a limited role in EU consumer law.
e contribution of EU consumer law to innovative governance is more important. ere
is an increasing number of regulations that directly set contractual rights for consumers,
and alternative dispute resolution has gained momentum with the recent adoption of an
ADR directive and an ODR regulation. e most signicant evolution of consumer law
in the past 20 years is innovation in the eld of enforcement, both by the judiciary and
the legislature, such a s the active role of the judge (case law on the unfair contract terms
directive), ADR, administrative cooperation and individual and c ollective remedies.
Keywords: active role of the judge; alternative dispute resolution; consu mer condence;
consumer redress; free movement
§1. INTRODUCTION
EU consumer law is largely a creation of the last 20 years. e rst consumer direc tives
(o premises sales and misleading advertising) were adopted in the mid eighties of the
last century, but the rst impor tant consumer directive came to light in 1993: Directive
93/13/EC on Unfair Contract Terms in Consumer Contracts. Other i mportant steps in
the evolution of substantive EU consumer law were the adoption of the Dist ance Sales
* Emeritus Profes sor, KU Leuven, partner L iedekerke Brussels.
Jules St uyck
386 20 MJ 3 (2013)
Directive 97/7/EC in 1997, the Consumer Sales Directive 1999/44/EC in 1999, the Unfair
Directive 2011/83/EU, in 2011. In the area of enforcement, the rst piece of specic EU
legislation came in 1998 w ith the Injunctions Directive 98/27/EC. More recently in the a rea
of enforcement, the Consumer Cooperation Reg ulation 2006/2004/EC has been adopted .
e emergence of EU consumer law is linked to the internal market programme.
e internal market (now governed by Article26 TF EU) was scheduled to be completed
20 years ago, by 31December 1992, but it is only a er the expiry of the t ime limit for
the completion of the internal ma rket that the European Commission has real ly tackled
consumer protection as an element to improve the functioning of the internal market.
e Commission became increasingly concerned with t he lack of consumer condence
to shop in the internal market. Consumer condence, so it was said, was impaired by
several legal obstacle s, notably by disparities in consumer protection laws.1
In its 2007 Communicat ion on EU Consumer Policy Strategy 20 07–2013,
‘Empowering Consumers, Enha ncing eir Welfare, Eectively Protect ing em’,2 the
Commission said that t he consumer dimension of the internal market a nd retail markets
in particu lar needed to be further reinforced. e resulting proposa ls focused on
harmonization of substa ntive provisions. Wilhelmsson has criticize d what he called the
‘abuse of the condent consumer’: the substantive mini mum harmonization measu res
seem to be relevant to stimulate condence only to a limited extent. Consumers may
indeed be reluctant to acquire goods a nd services abroad because of a lack of protection
oered in foreign markets, but there is empiric al evidence that this has more to do with
diculties l inked to the exchange and repair of goods or t he settlement of disputes than
with substantive d ierences.3
e newest policy document of the Comm ission in the area of consumer protection
is a Communication to the European Parliament, the Council, and the Economic and
Social Commit tee and the Committee of t he Regions, entitled ‘A European Consumer
Agenda-Boosting Condence and Grow th’.4 It contains the same Leitmotiv of improvi ng
consumer condence in cross-border shopping (online). But this principle is now
embedded in a broader context: ‘Well designed and implemented consumer pol icies
with a European d imension can enable consumers to make informed choices t hat reward
competition, and support the goal of sustainable and resource-ecient growth whilst
taking accou nt of the needs of all consumers.’ Consumer polic y is put at the heart of
1 See Green Paper on the R eview of the Consumer Ac quis, COM (2006) 744 nal, p.10–11.
2 Communicat ion from the Commis sion to the Council , the European Pa rliament and the Eu ropean
Economic and Soc ial Committee, EU Consu mer Policy strategy 20 07–2013, Empowering consu mers,
enhancing t heir welfare, eec tively protecting t hem, COM (2007) 99 nal, sum mary, p.1.
3 T. Wilhelmsson, ‘Abuse of the C ondent Consumer’, 27 Journal of Consu mer Policy 3 (2004), p.317–
337.
4 Communicat ion from the Commission to the Eur opean Parliament, the Cou ncil, the Economic and
Social Com mittee and the C ommittee of the Reg ions, A European C onsumer Agenda – Boos ting
condence and grow th, COM (2012) 225 nal, p.1.
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