Procedural rights—a catalogue for consumer law?

Procedural rights have been recognized as an essential part of human rights and have been codified in several fundamental documents. The 1948 Universal Declaration of Human Rights, for example, includes several procedural rights. Article 8 enshrines the right to an effective remedy for acts violating fundamental rights, while Article 10 guarantees fair procedures. Article 20 ensures freedom of association and Article 21 concerns the right to take part in government.

These rights have taken a specific and prominent role in the field of environmental protection which, just like consumer law, deals with the issue of protecting diffuse interests.[1] The 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice (the Aarhus Convention)[2] recognizes in its preamble that procedural rights are a significant prerequisite for an adequate protection of the environment, underlying their importance for the enjoyment ofhuman rights.[3] Accordingly, the Convention contains procedural rights to increase public involvement in decision-making and to facilitate access to justice. The procedural rights of the Aarhus Convention may provide inspiration for consumer protection, which has been equally recognized as a fundamental policy objective in the Charter of Fundamental Rights. In such a context, procedural rights may encompass, for example, the right to: information (as a precondition of participation), fair administrative actions, public participation, and access to justice.

Procedural guarantees, and in particular the concept of access to justice, have also played an important role in the European human rights discourse and EU case law.[4] Key provisions in the Charter of Fundamental Rights are the right to good administration (Article 4) and the right to an effective remedy (Article 47).[5] Furthermore, the European Convention on

Human Rights (ECHR) contains core procedural human rights guarantees in Article 6 on the right to a fair trial and in Article 13 on the right to an effective remedy.

Despite these broad provisions at the human rights level, procedural rights are not fully developed in EU consumer law. While recent legal innovation has strengthened alternative dispute resolution procedures,120 consumers still face barriers to access justice, in particular in cases of collective actions. As we will see in Chapter 7, effective consumer protection could be improved by stronger procedural rights, facilitating amongst other things cross-border collective actions.

Another class of procedural rights that could be strengthened in the EU system is that of participatory procedures, whose theoretical underpinning has been considered when discussing Habermas’ discourse approach. Participatory procedures provide citizens and interest groups with the possibility to be involved in the law-making process, giving them a chance to see their aspirations reflected in the legal system. Moreover, they strengthen the legitimacy of the law. At present, consumers often lack the means and the understanding to make their voice heard at the regulatory level,121 requiring strong and permanent organizations to play a systematic role in representing their interest.

This discussion suggests that a catalogue of procedural rights for EU consumer law might be an appropriate complement to the protective provisions which are already being developed.122 Such a catalogue would both promote and legitimate a system built around the figure of an active consumer. It could include three key procedural rights for consumers: (1) the right to information; (2) the right to participation in the policy debate; and (3) the right to access to justice.

The right to information and advice or education is an essential starting point: adequate information and advice enhance the capabilities of consumers

National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights’, (2011) 34(2) World Competition: Law and Economics Rev, pp. 189-213.

  • 120 See Regulation (EU) No 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes (Regulation on consumer ODR), Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes (Directive on consumer ADR).
  • 121 See e.g. H.-W. Micklitz, ‘European Consumer Law’, in E. Jones, A. Menon, & S. Weatherill (eds), The Oxford Handbook of the European Union, online version, 2013, p. 16.
  • 122 A similar recommendation has been put forward by the European Economic and Social Committee, which underlined the importance of participatory measures for consumers and the focus on collective redress. See the opinion of the European Economic and Social Committee on the Legal Framework for Consumer Policy, INT/263, Brussels, 20 April 2006.

to participate effectively in market transactions and policy-making.[6] The right to information of consumers is already included in Article 169(1) TFEU and was implemented in a number of directives, which will be explained in the following chapters.

Participation in the policy debate ensures that consumer interests are taken into account in law-making procedures.[7] Participatory democracy is recognized in Article 11 TEU, which stipulates, inter alia, that: ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. This can be regarded as an important means for non-institutional actors, such as consumer organizations, to take part in EU decision-making.[8] This is also in accordance with a concept of democracy emerging from the discourse and capability approach, whereby a system should ensure material conditions for the effective exercise of rights.[9] Chapter 6 will explore this issue further.

Finally, the right to access to justice and due process assists consumers in enforcing their rights. Access to justice can be facilitated by rules supporting the effective protection of consumer interests by collective actions, alternative dispute resolution, and litigation funding schemes. Chapter 7 discusses this topic in more detail, exploring how effective judicial protection of consumers may be strengthened as a fundamental right.

  • [1] D. Anton & D. Shelton, ‘Procedural Human Rights and the Environment’, in EnvironmentalProtection and Human Rights (Cambridge: CUP, 2011), pp. 356 et seq.
  • [2] Text of the Convention can be found at: . The Convention entered into force in 2001.
  • [3] M. Pallemaerts, ‘Proceduralizing Environmental Rights: The Aarhus Convention on Accessto Information, Public Participation in Decision Making and Access to Justice in EnvironmentalMatters in a Human Rights Context’ (UNEP for the Geneva Environment Network, 2004), pp.17-19; see also in the same publication, EX. Perrez, ‘Key Questions concerning the Human Rightsand Environment Debate. An Introduction’, p. 6.
  • [4] E. Storskrubb & J. Ziller, ‘Access to Justice in European Comparative Law’, in F. Francioni(ed.), Access to Justice as a Human Right (Oxford: OUP, 2007); A. Ward, ‘Access to Justice’, in S. Peers& A. Ward (eds), The EU Charter of Fundamental Rights (Oxford: Hart Publishing, 2004), pp. 123-40.
  • [5] For the impact of procedural human rights on competition law see W. Wils, ‘EU AntitrustEnforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law,
  • [6] See also Harding, Kohl, & Salmon (n 10).
  • [7] The link between social objectives and market choices has to be openly debated to increasepolitical legitimacy, see S. Weatherill, Consumer Law and Policy (Cheltenham: Edward ElgarPublishing, 2005).
  • [8] For the definition of participation see J. Mendes, ‘Participation and the Role of Law afterLisbon: A Legal View on Article 11 TEU’, (2011) 48 CML Rev., p. 1849.
  • [9] Sen, Development as Freedom (n 52), p. 84; Habermas, Between Facts and Norms (n 84), p. 82.
 
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