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II. Vulnerability

The Vulnerable Consumer in the UCPD and Other Provisions of EU Law

Marine Friant-Perrot

Introduction

The concept of 'vulnerable consumer' is relatively new in European Consumer law.[1] It is part of the evolution of consumer policy that focuses on enhancing consumers' confidence in the internal market. This approach considers the consumer as an economic agent whose interests are mainly protected by the benefits of the single market's proper functioning.[2] Although this neo-liberal approach aims to benefit the average consumer, it may leave on the side the vulnerable consumer. Indeed, his discernment - altered by age, infirmity or excessive credulity - could prevent him from acting as the abstract model of homo economicus.

This vulnerability that affects a certain category of consumers is highlighted in other fields of Law. The concept of 'vulnerability' has indeed become 'in fashion' in legal thought.[3] From the Latin 'vulnerare' (to injure), vulnerability means 'likely to be injured, to be attacked', and characterizes the person in a position of weakness. This weakness covers a variety of situations. Thus, Professor J. Hauser lists a broad range of vulnerabilities to build a general theory about the protection of vulnerable subjects: 'medical vulnerabilities, social vulnerabilities, those of the minor person, those of the medically targeted major person, but also subjects in an unfair economic or psychological position, consumers, users of health services, citizens against government etc.'. Vulnerability aggregates multiple situations in which a person's autonomy should be restored in the name of the principle of dignity. Built as a provider of rights, it is 'less the personal characteristic of an individual than the possible qualification of its relationships with others.[4] Therefore, civil law (especially for 'dys-capables') and economic law are likely to create links around the concept of vulnerability. Indeed, according to Fossier:

'Dys-capables' - who apply their will like all of us but against their own interest -, and 'Para-capables' - misfits who do not understand the ins and outs of the social stream - are aggregated to the tutelary protection. Thus, the former and hated category of 'incapacitated' has lost its meaning and the word vulnerability has begun its career.[4]

The bridge between civil law and consumer law is particularly obvious concerning the field of prevention and treatment of over-indebtedness in France. Measures of social[6] and legal[7] support under the French Dyscapables Act (2007)[8] allow preventing over-indebtedness in helping protected people to find autonomy in managing their resources. Some forms of social maladjustment place the person in a state of vulnerability. This weakness deprives the person of the autonomy which could allow him to make choices more favourable to his interests and enjoy the benefits of the market.

This variety of figures of the vulnerable person in private law and especially in consumer law makes it difficult to grasp the concept of vulnerability. In a very pragmatic way, provisions of EU consumer law and other provisions of EU law reflecting the emergence of the concept should therefore be identified (1) in order to analyse the effects of the vulnerability regarding the protection afforded to consumers (2).

  • [1] See nevertheless, CJEC, 9 July 1997, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB, 34/95, Ree. 1997, CCL AG Jacobs, pt. 102 ('It is settled law that the fairness of commercial transactions and consumer protection in general figure among the objectives which can justify restrictions on the free movement of goods. (62) The protection of a particularly vulnerable sector of consumers such as children must a fortiori also constitute an overriding public-interest ground capable of justifying such restrictions').
  • [2] G Howells and S Weatherill, Consumer Protection Law (Ashgate, 2005) 1.
  • [3] J Hauser, 'Une théorie générale de la protection du sujet vulnérable?' (2011) Revue Lamy Droit Civil 83; Cour de cassation, Les personnes vulnérables dans la jurisprudence de la Cour de cassation, Annual report 2009, wwwcourdecassation.fr/ publications_cour_26/rapport_annuel_36/rapport_2009_3408.
  • [4] Th Fossier, 'Peut-on légiférer sur la vulnérabilité?' (2011) Dr. Famille dossier 2.
  • [5] Th Fossier, 'Peut-on légiférer sur la vulnérabilité?' (2011) Dr. Famille dossier 2.
  • [6] Art L. 271-1 French Code of the social and family action.
  • [7] Art 495 al 1 French Civil Code.
  • [8] Dyscapables Act (2007) of 5 March 2007 (LOI n° 2007 308 du 5 mars 2007 portant réforme de la protection juridique des majeurs, JORF n° 56 du 7 mars 2007 page 4325).
 
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