The Effects of Vulnerability on Protection

Table of Contents:

What protection is given to vulnerable consumers? Is there a plurality of regimes or is a uniform treatment of situations of vulnerability emerging? (A) Even if the treatment of the vulnerability can gain consistency by standardizing the rules made by the European consumer law, penalties remain the responsibility of the Member States (B).

The Treatment of Vulnerability

Consumer vulnerability is taken into account in two ways. On the one hand, to ensure consumer access to basic goods and services, a tariff policy helps fight against social exclusion of the poorest (1). On the other hand, the vulnerability of a targeted group of consumers modifies the assessment of the rules in a more protective way (2).

3.1.1 The access to essential goods and services

For consumers, the services of general interest are those that:

- are essential to life and health. For example, the lack of access to essential supplies such as water, electricity or gas, can be a cause not only of discomfort and inconvenience, but also a threat to health or life itself;

- are essential to social participation, in the case of a vital service for social inclusion. This is the case, for example, of telecommunications services (which are a salvation for people in vulnerable situations) and some transport services (essential for people who live in remote areas and those who live, work and move in a community).[1]

Regarding affordability, the benefits of the liberalization of major supply markets are unequally distributed and certain categories of low-income consumers are excluded. Maintaining affordable access should allow all consumers to benefit from essential services (water, electricity, gas). The legal treatment of vulnerability occurs by the introduction of social tariffs.

Regarding physical accessibility, vulnerability may result from reduced mobility due to a disability or physical, intellectual, sensory or age deficiency. The protection of vulnerable persons in this case consists in adapting transports and commercial premises to the specific needs of disabled people.

Besides the rules concerning people with disabilities, there are codes of good conduct or private approaches recoverable by labels[2] that allow excluded consumers, particularly older, to move and effectively access shops if only to buy essential goods such as food.

Access to essential consumer goods and services does not belong to consumer policy and is focused on a single source of vulnerability (poverty, disability). However, the protective rules belong to a public order of protection that is also at work in the implementation of consumerist rules in favour of vulnerable people.

3.1.2 The specific implementation of protective rules

Vulnerability does not create new rights, it simply changes the legal standard to which we refer for judging the unfair practice or the hazardous nature of a product.

The authors who criticize French consumer law consider that the rules of consumer law place the consumer in a minority. Thus, they argue that 'consumer rights tend to make of him an incompetent adult or an eternal minor' contending that 'general Guardianship, the spirit of safety and risk aversion are the fatal disease of contemporary industrial societies' and that 'mothering stifles initiative'.[3]

It is not the purpose of entrenching the notion of vulnerable consumers. It does not aim to establish two categories of consumers: average consumers, who have full capacity and can enjoy the benefits of the proper functioning of the internal market and vulnerable consumers, considered as incapable.

In truth, consumer law is both an economic and social law[4] and the protection of the average consumer and the more vulnerable consumer differ more in their intensity than in their nature.

Concerning the protection of economic interests of consumers, the objective of Directive 2005/29 was to avoid that certain business practices are always considered unfair even though they do not alter the economic behaviour of most consumers. In reality, only the most vulnerable are affected by certain practices and Member States tended to place the cursor beyond the protection necessary to ensure that the weakest would be protected.

This resulted in a law that may unnecessarily impede intra-EU trade.[5] The European legislator did not choose the '"weak and vulnerable" consumer as the generally applicable standard,'[6] and opted for an abstract model, the 'average consumer reasonably well informed and reasonably circumspect'.[7]

As an exception, the assessment of a business practice will be by reference to a model, an average member of the group of consumers particularly vulnerable to the practice or the product to which it relates. According to the Commission, 'The aim of the provision is to capture cases of dishonest market practices which reach the majority of consumers, but in reality are devised to exploit the weaknesses of certain specific consumer groups.'[8]

Apart from this differentiated test that is intended to apply to any commercial practice,[9] certain practices that are per se considered as misleading or aggressive are likely to affect especially vulnerable consumers. For example, the practice of 'Claiming that products are able to facilitate winning in games of chance' [10] is considered as misleading. This type of claim affects the most gullible. Taking into account specific people with a gambling addiction is also considered in a Commission Communication of October 2012 on online gambling.[11] The practice of 'Falsely claiming that a product is able to cure illnesses, dysfunction or malformations'[12] may affect particularly the infirm, elderly and gullible. Finally, among the aggressive practices, there is a reference to advertising that constitutes 'a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them'.[13] The particular vulnerability of children is also taken into account by specific provisions such as those relating to food advertising in audiovisual media services to fight against growing rates of childhood obesity.[14]

Concerning the protection of the health and safety of consumers, the danger of a particular foodstuff and its harmful nature are evaluated differently if the product is intended for a specific category of consumers who present particular health sensitivities.[15] The analysis is the same as for unfair commercial practices. Particular caution is required from professionals that specifically target vulnerable consumers because, due to age or illness, their body is more sensitive to contaminants or pathogens.[16] The requirement imposed is, however, lower than for unfair commercial practices because only the vulnerable consumer products trigger the change of the reference standard. In the framework of Directive 2005/29, it is sufficient that the practice has the effect (not necessarily the purpose) of affecting the economic behaviour of a class of vulnerable consumers and that this impact could be foreseen by the professional.

Thus, the legal treatment of the vulnerability gains in consistency even if large parts of consumer law do not take into account the specificity of particularly weak consumers. Regarding the sanctions, we find a mosaic of remedies that reflects national choices.

  • [1] EU Consumers Committee, Elaborating the Universal Service Concept in the Services of General Interest - A Draft Consumer Committee Position Paper, 1999.
  • [2] See in France, Panorama des dispositifs locaux d'aide à la mise en accessibilité des commerces, 13 November 2012, Dispositifs-locaux-d-aide-a-la.html.
  • [3] Ph Malaurie, L Aynès and Ph Stoffel-Munck, Les obligations (Defrénois, 2011).
  • [4] D Mazeaud, 'Le droit de la consommation est-il un droit social ou un droit économique?' (2006) 9 Revue Lamy de la Concurrence.
  • [5] See Court's case law under art 28 EC: S Weatherill, 'Who Is the "Average Consumer?"' 115.
  • [6] Commission Staff Working Document Guidance on the Implementation/ Application of Directive 2005/29/EC on Unfair Commercial Practices, 2009 SEC (2009) 1666, 29.
  • [7] Art 5 of Directive 2005/29. Social, Cultural or Linguistic Factors May Justify Special Appreciation of the National Courts (Recital (18) of Directive 2005/29) : See Case C- 220/98 Estee Lauder Cosmetics (2000) ECR I-117, n°29 ('In order to apply that test to the present case, several considerations must be borne in mind. In particular, it must be determined whether social, cultural or linguistic factors may justify the term "lifting" used in connection with a firming cream, meaning something different to the German consumer as opposed to consumers in other Member States, or whether the instructions for the use of the product are in themselves sufficient to make it quite clear that its effects are shortlived, thus neutralising any conclusion to the contrary that might be derived from the word "lifting"'.
  • [8] Commission Staff Working Document Guidance on the Implementation/ Application of Directive 2005/29/EC on Unfair Commercial Practices, 2009 SEC (2009) 1666, p 31; H Collins, 'Harmonisation by Example: European Laws against Unfair Commercial Practices' (2010) 73(1) Modern Law Review 89-118 (99).
  • [9] See Case Law C-428/11 of 18 October 2012 - Purely Creative, §54 and 55.
  • [10] Annex I n°16 of Directive 2005/29.
  • [11] Communication from the Commission, to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - Towards a Comprehensive European Framework for Online Gambling, {SWD (2012) 345 final} COM (2012) 596 final.
  • [12] Annex I n°17 of Directive 2005/29
  • [13] Annex I n°28 of Directive 2005/29. The legal difficulty is to decide when and under what circumstances an advertising measure is directed at children, see. H-W Micklitz, J Stuyck and E Terryn (gen. eds) and D Droshout (coord. ed.), Cases, Materials and Text on Consumer Law (Oxford: Hart Publishing, 2010) 112.
  • [14] Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services ('Audiovisual Media Services Directive') (Text with EEA Relevance), OJ L 95, 15.4.2010, p. 1-24; A Garde, 'The Best Interests of the Child and EU Consumer Law and Policy: A Major Gap between Theory and Practice?', in J Devenny and M Kenny (eds), European Consumer Protection: Theory and Practice (Cambridge University Press, 2012) 164-201.
  • [15] Art 14 of Regulation No 178/2002 of the European Parliament and the Council of 28 January 2002 Laying Down the General Principles and Requirements of Food Law, Establishing the European Food Safety Authority and Laying Down Procedures in Matters of Food Safety.
  • [16] ECJ, 17 January 2013. Georg Köck v Schutzverband gegen unlauteren Wettbewerb, Case C-206/11, ECR 2013.
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