Procedural rights and participation

Procedural rights are a necessary complement to substantive rights, as they significantly influence the realization and the development of the latter.[1]

Procedural rights in general have been a key topic in theoretical debates. For example, in constitutional theory, Robert Alexy described the increasing prominence of procedural rights for the effective protection of constitutional rights.[2] Denis Galligan stressed the importance of procedural fairness and participation mechanisms, focusing in particular on administrative processes, which are seen as a precondition for the effectiveness of fair treatment standards.[3]

In what follows, we will consider procedural rights of two types: those that enable the effective protection of existing rights, and those that help to shape and define rights. These latter are also called participatory procedures, which allow individuals (in our case, consumers) to participate in the policy- and law-making processes.

Procedural rights of the first type are clearly essential to ensure effective protection of consumer rights.[4] For human rights, which are often abstract, they serve an even more important role: they help to shape and define the content of these rights by facilitating their application. Chapter 7 will further discuss procedural consumer rights, focusing in particular on the right to access to justice and on collective redress.

Sen’s framework is essentially silent on the first type of procedural rights but includes a treatment as to the second type of participatory procedures when discussing ‘political freedoms’. A key theoretical reference in this respect is Jurgen Habermas, who developed a ‘discourse theory’.[5] This theory is particularly interesting for our context, as it also places an important focus on the problem of legitimacy of legal systems which is, as we saw, strongly felt in the EU. Habermas highlights the core role of democratic rights for legitimate law-making, thus shifting the attention away from freedom rights, which are the main objective of the liberal approach.[6]

In his theoretical construct Habermas distinguishes five fundamental categories of basic rights.[7] The first three comprise civil rights, whose role is to guarantee the greatest possible subjective freedom of action for all individuals. A fourth category pertains to political rights, through which citizens enact legitimate law and participate in the democratic process. Finally, a fifth category of rights comprises social and ecological rights which, in turn, are necessary to exert the rights in the first four categories, and are, therefore, assigned a derivative status.[8]

All of these five categories form the basis for the institutionalization of ‘action norms’, and ensure that individuals can participate in a rational discourse about law. In turn, if such a discourse is absent or impaired, public action turns into technocratic policy-making not supported by the consent of the governed.[9]

While Habermas’ discourse theory remains rather abstract, his approach could be particularly relevant for the European context for several reasons. First, as already stated, it addresses the question of legitimacy, which is particularly pertinent for the EU. Secondly, being centred on an argumentative notion, it is well adapted to the European legal system, based on a relatively non-hierarchical network of institutions, which are therefore natural dialectic actors.[10] Finally, the discourse approach is clearly well suited to culturally diverse societies like the European one. Particularly in these cases, the discourse approach may facilitate a legitimate law-making process, as it allows better exploration of all the alternatives and of their effects on the parties involved.

Constitutional scholars have made a case for adopting a discursive approach in the EU constitutional process through an assembly, which would merge national Parliaments and the European Parliament into a real discourse.[11] This approach was effectively adopted in the creation of the EU Charter of Fundamental Rights, which indeed was the result of an articulated dialogue incorporating opinions from a large variety of sources.[12]

In the specific context of consumer law, a stronger focus on participatory rights would imply that: (1) relevant information relating to European public action should be available to consumers; (2) citizens should be educated, so they can form their own judgement on consumer-related issues; and (3) citizens should be given institutional means to express their judgement, either indirectly (through their vote) or directly (through unions, associations, media, etc.).[13] For point (3), in particular, adequate mechanisms have to be established, so that consumers can affirm their identity as consumers, through participation at every level of the European system.[14]

The next section discusses in more detail how these theoretical considerations surface in various existing legal provisions, at the EU and at a global level too. Moreover, it will show how these theoretical insights point to a way to extend and to interpret existing legislation, moving towards a new framework for consumer law.

  • [1] See e.g. F. Francioni (ed.), ‘The Rights of Access to Justice under Customary InternationalLaw’, in Access to Justice as a Human Right (Oxford: OUP, 2007), pp. 1 et seq.
  • [2] R. Alexy, A Theory of Constitutional Rights (Oxford: OUP, 2002), pp. 314 et seq.
  • [3] D. Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford:Clarendon Press, 1996), p. 100.
  • [4] See ch. 7; see also M. Cappelletti & B. Garth (eds), Access to Justice: a World Survey (Milan: A.Giuffre, 1978).
  • [5] See J. Habermas, ‘ Remarks on Legitimation through Human Rights’, in The PostnationalConstellation, Political Essays (Cambridge: The MIT Press, 2001), pp. 113 et seq; J. Habermas, BetweenFacts and Norms (Cambridge: Polity Press, 1996).
  • [6] J. Habermas, ‘Reconciliation through the Public Use of Reason, Remarks on John Rawls’Political Liberalism’ and J. Rawls, ‘Reply to Habermas’, (1995) 92 J. Phil., p. 3; Habermas, BetweenFacts and Norms (n 84).
  • [7] This system of rights is universal, but needs to be adapted to the particular national context,see Habermas, (n 84), pp. 122 et seq.
  • [8] Habermas, (n 84), pp. 123 etseq; see also the comments by J. Tweedy & A. Hunt, ‘The Future ofthe Welfare State and Social Rights: Reflections on Habermas’, (1994) 21 J. Law and Society, p. 307.
  • [9] Habermas, (n 84).
  • [10] The state still has a corrective function, but it can no longer be conceived as a hierarchical control mechanism; see Ch. Joerges, ‘The Impact of European Integration on Private Law:Reductionist Perceptions, True Conflicts and a New Constitutional Perspective’ , (1997) 3 Eur.L. J., p. 389.
  • [11] R. Bieber, ‘Steigerungsform der Europaischen Union: Eine Europaische Verfassung’, in J. Ipsen, H.W. Rengeling, J.M. Mossner, & A. Weber, im Wandel (Cologne: Festschrift zum 180 jahrigen Bestehen des Carl-Heymanns-Verlags, 1995), pp. 291 et
  • [12] J. Elster, 4 Forces and Mechanisms in the Constitution-Making Process’ , (1995) 45 DukeUniversity L. J., pp. 364 et seq.
  • [13] See also F. Kandil, ‘Economic Efficiency and Social Justice: A Prudential Approach forPublic Actions’, in Ch. Joerges, B. Strath, & P. Wagner (eds), The Economy as a Polity: The PoliticalConstitution of Contemporary Capitalism (London: UCL Press, 2005), pp. 207-9.
  • [14] A large number of actors participate in the European multi-level system, which requires a legalorder that facilitates deliberative actions; see Ch. Joerges, ‘On the Legitimacy of EuropeanizingEurope’s Private law’, EUI WP 2003/3, pp. 36 et seq.
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