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The Influence of Constitutional Rights and Principles

Consumer protection is finding an increasingly important place in the constitutions of European countries.[1] This section analyzes the scope and implication of constitutional consumer protection, exploring a number of relevant cases.

Constitutional consumer law models in selected countries

A constitutional comparison reveals different approaches to the incorporation of consumer rights into national legal systems, as constitutions always reflect a country’s traditions and economic and political experience. For Europe, a broad distinction can be made between three systems: a protective model, a moderate model, and a liberal model, although they all overlap to some extent.[2]

The protective model is characterized by the fact that extensive fundamental social rights have been included in the national constitution. These rights are ultimately treated as an instruction to the state to initiate measures that enable the citizen to exercise the rights concerned.[2] The authors of such constitutions have tried to cover every sphere of life and to provide comprehensive protection for their citizens. Member States such as Italy, Portugal, and Spain have consumer or health protection provisions in their constitutions.

Article 51 of the 1978 Spanish Constitution[4] serves as an illustration of the acknowledgement of basic consumer protection. Consumer protection comes under Chapter 3 of the Constitution, concerning principles governing economic and social policy. Article 51(1) states: ‘The public authorities shall guarantee the protection of consumers and users and shall, by means of effective measures, safeguard their safety, health, and legitimate economic interests.’ Article 51(2) continues: ‘The public authorities shall promote the information and education of consumers and users, foster their organisations, and hear them on those matters affecting their members.’ Thus, this Article aims at improving consumer protection by requiring the public authorities to further the education, information, and health protection of consumers. Based upon the Constitution, the Law for the Defence of Consumers and Users was published on 24 July 1984.[5]

In Portugal, Article 60 of the Constitution of the Portuguese Republic provides detailed consumer provisions.[6] Article 60(1) states that: ‘Consumers have the right to the good quality of the goods and services consumed, to training and information, to the protection of health, safety and their economic interests, and to reparation for damages.’ Furthermore, according to Article 60(3): ‘Consumers’ associations and consumer cooperatives have the right, as laid down by law, to receive support from the state and to be consulted in relation to consumer-protection issues.’ This Article forms part of Title III of the Constitution, which is entitled ‘Economic, Social and Cultural Rights and Duties’, and uses terms similar to the 1966 ICESCR.[7] These constitutional provisions were the basis of the Consumer Protection Law of Portugal in 1981.[8] [9]

Poland has also integrated consumer protection into Article 76 of its Constitution. As a result, the state has to protect consumer interests and the Constitutional Court can test the compliance of laws with the principles of consumer protection. 1 20 Similarly, Article 46 of Lithuania’s Constitution states that ‘the state shall defend the interests of the consumer’. The reason for including this constitutional provision was to render consumer policy less vulnerable to short-term economic considerations and to unfair market practices. Early experience in Central European countries demonstrates the important role that basic rights are playing in the current practice of constitutional courts.[10] This is particularly true with regard to the protection of the economic interests of consumers, for which the highest courts rely upon basic rights to break down established legal formalism in national private legal orders. These rights are used to give national private legal orders a more value-orientated social outlook.

The ‘moderate’ model applies particularly to countries such as Germany. This model combines liberal tendencies with social principles. For example, the German Constitution (named ‘Basic Law’: Grundgesetz (GG)) does not contain an explicit list with fundamental social rights including consumer protection, but enshrined a general and abstract welfare state clause (Articles 20(1) and 28(1)).[11] [12] In particular, Article 20 entitled ‘Constitutional principles’ states at paragraph 1 that: ‘The Federal Republic of Germany is a democratic and social federal state.’ 1 23 The ‘social state’ principle (Sozialstaatsprinzip) enshrined in this provision has to be respected by the public authorities in any actions that they take. In the following subsection we will see the possible effect that such a principle may have in contractual matters. A number of Central and Eastern European countries have also integrated social objectives in their constitutions. For instance Article 10 of the Estonian Constitution refers to ‘social justice’ as a basic principle that needs to be respected.[13] This application of principles reflects the constitutional traditions of specific Member States, which distinguish between rights and social principles.[14]

Finally, the United Kingdom and Austria have been described as a liberal model.[15] In the UK, there is no formal constitution and the liberal economic ideal favours a limited approach to regulation. Like the USA, the United Kingdom prefers a market-oriented solution with light state regulation. From the wide-ranging social safeguards in Austria and the UK, however, it is clear that, in these countries, social provisions do not need to be enshrined in constitutions for the public to be assured of basic social services.

  • [1] M. Hesselink, ‘Are we Human Beings or Mere Consumers?’, (2006) 12(38) European Voice.
  • [2] Butt, Kubert, & Schultz (n 33), pp. 32-3.
  • [3] Butt, Kubert, & Schultz (n 33), pp. 32-3.
  • [4] Constitucion Espanola 1978.
  • [5] See more in M. Angel Larrosa Amante, Derec de , Legal del Consumidor(Madrid: El Derecho, 2011), p. 16.
  • [6] Constitution of the Portuguese Republic (seventh revision 2005).
  • [7] V de Andrade & J. Carlos, Os Direitos Fundamentals na Portuguesa de 1976, 3rd edn(Coimbra: Almedina, 2004), pp. 62-6.
  • [8] For the impact of fundamental rights on consumers see D. Barbieri, 1 The Binding ofIndividuals to Fundamental Consumer Rights in the Portuguese Legal System: Can/Should it beThought of in Terms of Direct Horizontal Effect?’, (2008) 16 Eur. Rev. Private Law, pp. 665 etseq.
  • [9] However, according to Letowska,judges are still reluctant to apply this new constitutional consumer provision; E. Letowska, ‘The Constitutional Aspect of Consumer Protection in Poland’, inL. Thevenoz & N. Reich (eds), Liber amicorum Bernd Stauder, Consumer Law (Baden-Baden-Zurich:Nomos-Schulthess, 2006), pp. 227 et seq.
  • [10] W. Sadurski,‘ “Solange, Chapter 3”: Constitutional Courts in Central Europe—Democracy—European Union’, (2008) Eur. L. J., pp. 1 etseq.
  • [11] See also P. Beckmann, A. Colombi Ciacchi, et al., ‘Germany’, in G. Bruggemeier, A. ColombiCiacchi, and G. Comande (eds), Fundamental Rights and Private Law in the EU (Cambridge: CUP, 2010), p. 261.
  • [12] For the English translation of the German Basic Law, see: .
  • [13] For the full constitutional text in English see: .
  • [14] More on this topic in de Schutter (n 83).
  • [15] See Butt, Kubert, & Schultz (n 33), pp. 25 and 29.
 
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