Consumer Law and the Market

Introduction

In the eighteenth century, consumer law was almost non-existent and had to be created through civil society movements.[1] It was only after World War II that consumer protection developed in its own right as a separate branch of rules and principles. This evolution was part of a profound change in the attitude of individuals and governments, caused by an increase in goods and services in larger markets that, without adequate regulation, could be hazardous for consumers.[2] In more recent times, with the creation and enlargement of the common market, consumer law has become a driving force in the European integration process.

From the outset, the European Community was based upon a neo-liberal philosophy.[3] While consumer protection had first appeared at the national level, in the Community it was mainly used as an instrument to drive market integration. As a result, from the 1970s onwards, many scholars started to argue for an improvement in the legal position of consumers through the adoption of specific laws or a comprehensive consumer code.[4]

Eventually, consumer protection was included in the Single European Act (1986), instigated by the drive towards a single market (Article 100a). The Treaty of Maastricht (1992) provided the European Community with the express competence to protect consumers in Article 129a, whereas the subsequent Treaty of Amsterdam (1997) gave the European Community the potential to promote specific consumer rights, including the right to information and education (Article 153).

Since the Commission’s Consumer Policy Strategy 2002-2006,[5] the EU has pursued a full-harmonization approach to consumer law. As it does not allow more stringent national consumer protection, such an approach might diminish both legal diversity and higher standards of protection in force in some Member States. In addition, EU measures have mostly been adopted as a tool of market integration, and seldom for consumer protection per se. Consequently, rising tensions have become apparent between national measures of consumer protection and EU actions to improve market integration.

In the light of this development, a number of questions arise. What is the division of competences between the EU and the Member States? Should consumer law in the EU be limited to a market-forming role, or should it include wider citizens’ concerns? What legal instruments can promote consumer welfare in a broad sense and not only in terms ofexpanded markets and economic integration?

In order to address some of these questions, this chapter will explore the development of EU consumer law and will assess the application and the limitations of the Treaties and their impact on Member States. Section 2 gives a historical overview of consumer law, explaining how it evolved in both national and international law. Section 3 describes the evolution of consumer law at the EU level and analyzes the Union’s competence in this field. Finally, section 4 explores the current policy trend towards full harmonization of consumer law in the EU and the need for a new legal approach.

  • [1] F. Trentmann, ‘Knowing Consumers—Histories, Identities, Practices: An Introduction’, inF. Trentmann (ed), The Making of the Consumer: Knowledge, Power and Identity in the Modern World(Oxford-New York: Berg, 2006), pp. 6-9.
  • [2] M. Everson & Ch. Joerges, ‘Consumer Citizenship in Postnational Constellations?’ EUI WPLaw 2006/47, Florence, p. 8.
  • [3] W van Gerven, The European Union: A Polity of States and Peoples (Oxford: Hart Publishing, 2005), p. 200.
  • [4] J. Calais-Auloy, Propositions pour un nouveau droit de la comommation (Paris: Documentationfran?aise, 1985).
  • [5] Communication from the Commission of7 May 2002—‘Consumer Policy Strategy 2000-2006’,COM (2002) 208 final—OJ 2002 C137/2.
 
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