Between Neo-Liberalism and the Social Market: Approaches to Debt Adjustment and Consumer Insolvency in the EU

Many EU countries introduced debt adjustment systems as a response to the growth of over-indebtedness since the 1980s. These systems, originally introduced in many countries as crisis measures, have now become normalized, metamorphosing through a continuing learning process into a combination of debt adjustment and insolvency relief through a discharge of debt, sometimes after only 1?year, but often after a debt repayment plan over a period of 3–7?years. Since the early 2000s, new Member States of the EU have also introduced insolvency systems, often based on models from the old states. This paper examines experience in European consumer insolvency systems, based on the modest empirical studies of existing systems, primarily England, France and Germany. It discusses the reasons for the use of consumer insolvency, and the limited data on the characteristics of users, charts distinct national approaches and outlines common themes and objectives for consumer insolvency in the context of EU measures to create an integrated credit market in a “competitive social market. To economy”. It concludes by underlining the absence of systematic social science knowledge on existing systems and outlines areas for further research.     

The Phenomenon of “Consumer Insolvency Tourism” and its Challenges to European Legislation

Consumer insolvency tourism, i.e., the relocation of over-indebted natural persons into a Member State granting a more favourable discharge regime from personal debt than the home country, has been focused by media as well as by legal practitioners quite intensively lately. Conflicts arise not only in distinguishing genuine and fictional relocations of the centre of main interest (COMI), but also between the effect of discharge and creditor's perspectives who did not take into account the possibility of considerably more debtor-friendly discharge facilities abroad when issuing the credit. While relocating a corporate COMI to another Member State providing better restructuring conditions will generally benefit both creditor and debtor, the effect of discharge in consumer insolvency procedures leads to less balanced results. It is not controversial that the current practice is in accordance with the wording of the European Insolvency Regulation (EIR). However, little research has been done so far on the question whether the phenomenon itself has been endorsed by the EIR. Even if consumer insolvency tourism is generally not regarded as an abuse of the EIR or of European freedoms, it may still not respect the interests of both debtors and creditors appropriately. With regard to the prospective revision of the EIR, this paper proposes different approaches to balance the interests of debtors and creditors by normative means.     

Elements of a horizontal product safety policy for the European Community

The article discusses elements of a horizontal general product safety policy for the European Community and its relationship with the new approach to technical harmonization and standardization. The following particular elements are treated: (a) the adoption of a general obligation for manufacturers to produce and market products which are safe; (b) the European Home and Leisure Accident Surveillance System as an instrument for improving the construction of products and for instigating follow-up market controls; (c) follow-up market controls (improving the Community System for the Rapid Exchange of Informations on Dangers Arising from the Use of Consumer Products, harmonization of the means of control and intervention in the several Member States, interim measures at Community level in cases where products constitute grave and immediate dangers in more than one Member State); (d) setting up a Standing Committee for all questions on product safety policy; (e) consumer participation in the standard-setting process; (f) the complementary function of the Product Liability Directive. The case-law of the European Court of Justice relating to the free movement of goods and the remaining competences of Member States are taken into account. Finally, the example of the proposed Directive on machinery makes clear that the new approach to technical harmonization and standardization interferes strongly with the established structures of worker and consumer safety regulations in the several Member States as well as with traditional procedures of standardization and certification.     

Editorial to the special issue on drowning prevention

The average citizen is now demanding more and more quality of and information on the various products that every day life requires. This concerns an extremely broad range of consumer products. Within the European Union, the European Commission (Directorate General Health and Consumer Protection (SANCO) plays a leading role in assuring and controlling the high quality of consumer products. It is known that there are a number of potential risks associated with the use of those products, as shown by the high number of unintentional injuries occurring every year. Therefore, national and international authorities and other instances need access to information for the promotion of safety and for the prevention of accidents. Tools have been made available to the Member States by the European Commission for the completion of a safe internal market of consumer products. Among those, databases have the advantage of being able to store a huge amount of information that can be classified according to real needs, hence serving the citizens. Such availability is immediate if they are deployed on the Internet. Moreover, this has the major advantage of allowing feedback from the users, thus contributing to its improvement. Consequently, a relational database on the safety of consumer products has been set up within the framework of an agreement between Directorate General SANCO and the Joint Research Centre of the European Commission: the Consumer Product Safety Database (CPS). The objective of this database is to complement the setting up of a common system of exchanging information on consumer products within the framework of the application of Directive 92/59/EEC. The CPS database gives people concerned with consumer safety information that has never been gathered together before. Hence, this tool can contribute to the creation of a safer market for consumers in accordance with the Union’s legislation, as well as facilitating the decisions of Directorate General SANCO regarding consumer products.     

Consumer Protection Law in Cuba

Journal of Consumer Policy - The authors address the origins and evolution of consumer law in Cuba and the influence of European Union consumer law on development in Cuba. The transition from the...     

The Stockholm Manifesto. Creating a safe environment for children in Europe

The European Child Safety Alliance is an initiative of the European Consumer Safety Association with a network of child injury prevention organizations within 25 Member States in Europe. The Alliance, launched in 2001, focuses on strategies that assist in the reduction of injury related deaths and disability amongst children 0 to 18 years of age in the European Union Members States. The Alliance work is done in partnership with stakeholders from various disciplines involved in child injury prevention in order to promote a coordinated and consistent approach across Europe.     

EU Consumer Law Outside the European Union: The Case of Albania

The article examines the emergence of Albanian Consumer Law as an example of the application of the EU consumer acquis beyond the European Union. The argument is that Albanian Consumer Law was established and developed principally as a result of external pressures, whereby as part of the pre-accession process Albania has undertaken an obligation to harmonize its consumer law with EU law. In turn, the weakness of domestic pressures and factors, including a genuine commitment on the part of Albanian policy makers to develop consumer law so as to protect their citizens as consumers, resulted in a fairly slow evolution of consumer law in Albania and the lack of implementation of the initial enactments in practice. However, the empowering of a dedicated Consumer Protection Commission as the main institution in charge of enforcement of consumer law in Albania has led to some enforcement activity and a significant number of consumer protection cases. An analysis of the cases suggests the Commission is using, and upgrading, its powers so as to intervene in a number of different sectors in the economy, including against quite powerful market players.     

The Expulsion of the Concept of Protection from the Consumer Law and the Return of Social Elements in the Civil Law: A Bittersweet Polemic

Consumer law started in the 1960s and 1970s as consumer protection law, meant to compensate for the risks and deficiencies of the consumption society which led to an enormous increase. The target of the first generation of national consumer law was the weak consumers, those who could not cope with the increased choice and the resulting risks. The argument here presented is that the European Union by taking over consumer legislation gradually but steadily changed the outlook, from consumer protection law into consumer law. The weak consumer is not the one who is needed for the completion of the Internal Market. This is the famous average consumer which governs today??s?? normative design of the consumer law making and enforcement. However, the shift in paradigm does not set aside the need to strive for legal rules that cover the weakest in the society.     

Entrenchment of New Governance in Consumer Policy Formulation: A Platform for European Consumer Citizenship Practice?

Consumer typologies reveal categories of the consumer that stretch from the vulnerable to the empowered notion of the consumer citizen. At the empowered end of this spectrum, consumers in Europe have a developing, normative, organisational structure that provides channels for the consumer voice to influence consumer policy at the European level. This is an organisational structure with mechanisms for developing an effective consumer empowerment and enforcement framework across all EU Member States. It is a framework that forms a coherent whole with the European-level consumer institutions. This paper examines the integrated nature of these institutions and their role in influencing the development of consumer policy through a multi-level platform of new governance. It discusses the normative processes that, through empowerment and engagement, are encouraging a consumer citizenship practice to exploit these channels of communication in order to influence policy development.     

Measuring financial market integration in the European Union: EU15 vs. New Member States

This paper quantifies financial market integration in the European Union, using a large array of credit and bond market indicators, stock market indicators, as well as indicators based on household and firm decisions. It focuses on comparing the evolution of the European Union before the Eastern enlargement (EU15) with that of the 12 New Member States (NMS) that joined after 2000. It documents improvements in the integration of the credit and bond markets as well as stock markets for both groups within the EU27, the heightened heterogeneity brought about by the NMS, but also a reversal of the integration process over the recent years (corresponding to the financial crisis), divergence disrupting both the EU15 core and the NMS. For all the decades of achievements within both the EU15 and NMS groups in terms of credit and stock market integration, the ultimate goals of financial market integration, perfect capital mobility and full international risk sharing remain out of reach.     

Foods produced using biotechnology: how does the law protect consumers?

This paper addresses the following subjects: biotechnology and consumers, concern about risks, consumer acceptance, labelling of foods produced using biotechnology, the legal approach to consumer protection, and consumer protection policies relating to biotechnology products in the European Union, the United States, Turkey and global institutions such as the Convention for Biological Diversity (CBD) and the World Trade Organisation (WTO). It is likely that biotechnology will gain ground much more rapidly in the twenty‐first century than in the past. Despite rapid, detailed and precise advances in gene technology, its applications have not been the received with a great deal of consumer enthusiasm. Consumers have approached genetically modified foods with considerable apprehension and opposition. Consumer concerns about bioengineered food products focus on the questions of human health, environmental and social risks and benefits. The most important stages in the process of marketing new foods produced using biotechnology are to demonstrate user need and consumer acceptance. Generally, the technical complexity of biotechnology makes it difficult for consumers to understand details of the product and the specific attributes of biotechnology applications. Scientific uncertainty, the nature of consumer concerns and general reluctance to accept biotechnology products, increase the importance of consumer protection. Legal protection is a very important factor in the solution of new social problems related to technological advances. More specifically, consumer and environmental law support consumer protection related to foods produced with biotechnology. The basic principles of consumer law can be re‐formulated as consumer rights. Environmental law is a new phenomenon, but precautionary principles and public participation in decision‐making for environmental law are relevant to consumer protection relating to bioengineered food products.     

消费信用与消费者破产研究

消费信用与消费者破产之间存在密切的联系。进入消费者破产程序的消费者必然有无法偿还的债务,而消费者只有接受了消费信用,才可能成为债务人,因此,消费信用是消费者破产的根本原因。消费信用越容易获得,消费者过度负债的可能性就越高,相应地,消费者对宽松的消费者破产制度的需求就越强烈。从消费市场的繁荣程度和消费者破产数量的关系来看,二者是成正比关系的。消费者破产制度作为消费信用的回收制度将影响消费信用的供给与需求,促进信用体系的建设。消费信用在我国进入快速发展时代,从控制社会危机的角度来看,消费者破产制度的建立已经迫在眉睫。     

Networks to Enforce European Law: The Case of the Consumer Protection Cooperation Network

Central to this paper is the aim to discuss the effectiveness of the Consumer Protection Cooperation Network (also known as ??CPC Network??) for consumer protection in cross-border disputes in the European Union (EU). In doing so, this paper deals with the literature about networks established by grouping the Commission and national authorities to enforce European Law. The examples of the European Competition Network and the CPC Network are interesting because they raise questions with regard to the effectiveness and the accountability of emerging network-based law enforcement. The development of the CPC Network may have relevant implications for other areas of EU law and policy, including the question whether network-based governance could be transposed in other fields of EU Law.     

A Next Step in Debt Enforcement: the Merger of Debt Help and Debt Collection

Since the 1990s, each Member State of the European Union designed a policy that infused the liberal American fresh start policy into its own social institutions and legal culture. Especially in countries with a civil law tradition, the legal position of the consumer has improved. The paradigm of lifelong liability of debts has been replaced by a form of limited liability. Discharge of debts has established itself as a firm legal principle in all European jurisdictions. In most European countries, the new approach consists of a combination of legal and extrajudicial instruments. Under the umbrella of the courts, social workers, trustees, and administrators perform a broad range of activities in monitoring and helping debtors. The so-called new-chance approach has dramatically changed the playing field amongst debtors and creditors. The new legal equilibrium worked rather well in most European countries in the 1990s and 2000s. However, the systems are obviously far from perfect as almost all European governments are still fine-tuning their laws. Recently, two innovations have appeared on the European stage: Some Nordic countries have opted for a centralized state-controlled enforcement system, while in the UK, commercial debt management plans were developed, mainly by commercial suppliers. In 2005, the US Bankruptcy Code was changed in favour of the creditors. The 2008 credit crunch and its aftermath present a window of opportunity for the next step in the modernization of debt enforcement policy. I will suggest a merger of the fields of debt relief and debt collection, with a pivotal role for independent trustees.     

The reality of integration within the european union

The European Single Market program has put in place legislation that provides the free circulation of goods, capital, and people. Further, the recent implementation of monetary union provides a single currency and a common monetary policy in 11 out of the 15 Member States. Yet significant practical barriers to European integration remain. Legislation concerning taxation and company law is still primarily nationally based. More fundamentally from a business perspective, the European environment continues to be characterized by divergent industry structures and national cultures. Although there is considerable momentum for political and economic integration at present, this deep-seated national diversity remains strong and can hinder businesses from adopting an integrated approach toward the European Union. © 1999 John Wiley & Sons, Inc.     

Die geplante neuordnung des konsumentenkreditrechts in der schweiz

The planned reform of consumer credit law in Switzerland. The author discusses the bill of a new Swiss Act on Consumer Credit. It is the intention of the bill to protect consumers engaged in all forms of direct or indirect acquisition on credit of goods and services. The bill contains detailed regulations in order to realize the consumer's freedom of entry into contract. There are rules concerning advertising, the duty to inform the consumer about effective credit cost, the protection against unfair clauses, and restrictions with regard to the duration of the credit period. The bill enacts rules concerning the default of consumers, too: Excessive interest rates in case of default are banned; the consumer may apply for adelai de grâce. Finally, the bill will improve the possibilities of preventive protection and of legal action on the part of the consumer. There will be criminal sanctions if the creditor does not fulfil his obligations. He may also loose his contractual rights. Consumer organizations may proceed against abuses in the advertising by consumer credit lenders.     

Seeking a Single Policy for Contractual Fairness to Consumers: A Comparison of U.S. and E.U. and E.U. Efforts

The United States and the European Union both have made substantial progress toward harmonizing contractual unfairness law for consumers within their borders. To a large degree, the policies of these two largest consumer markets in the world are similar, but consumers should beware that some significant differences remain. Furthermore, differences in interpretation among member states could lead to differences within the E.U.     

Consumer Protection Act, 1986: Law and policy in India

India passed its new Consumer Protection Act in 1986. The author points out that the Act is a landmark in the history of the consumer protection movement in India. It concerns mainly the regulation of consumer disputes and creates specific redress agencies at district, state, and Union level. It also contains general provisions for consumer rights and for the organization of the consumer interest.

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Verbraucherschutzgesetz 1986: Recht und Politik in Indien

Zusammenfassung Nach Meinung des Autors handelt es sich bei dem neuen indischen Verbraucherschutzgesetz um einen Meilenstein in der Verbraucherschutzbewegung dieses Landes. Das Gesetz betrifft vor allem die Regelung von Konsumentenstreitigkeiten, für die es eigene Einrichtungen und verfahren auf Distrikt-, Provinz- und Unionsebene schafft. Das Gesetz enthält auch allgemeine Verbraucherrechte und einen organisatorischen Rahmen zur Verbrauchervertretung.

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Rajendra Kumar Nayak is an Associate Research Professor at the Indian Law Institute, Bhagwan Dass Road, New Delhi-110001, India, and Member, Central Consumer Protection Council, Government of India.     

Errare humanum est: Financial Literacy in European Consumer Credit Law

Examples of financial mistakes made by consumers lend support to the view that systematic mistakes of consumers exist in the EU credit market and that service providers respond strategically to these by redesigning their products. This paper seeks to determine how existing regulation can be improved to ensure consumer protection. Using insights from behavioural economics, this paper argues that financial literacy??that is, knowledge and understanding of complex financial products and skills to navigate the financial market??as a cornerstone for European financial consumer law is problematic. Current regulation is based primarily on information provision to consumers, which should enable them to make appropriate decisions about the risks and suitability of financial products. Although behavioural economics does not necessarily require legal intervention to take other forms than the introduction of information duties, the type of intervention is dependent on the design and needs of a particular market. The EU consumer credit market, in our view, demands more than the current regulation offers in terms of consumer protection. In particular, behavioural studies reveal that consumers generally do not have a sufficient level of financial literacy in order to enable them to make informed, rational decisions. Moreover, behavioural biases have a distorting influence on consumer decision making. The law as it stands, therefore, seems ill-equipped to offer protection to consumers and to prevent them from rash and bad decision making. Reviewing existing regulation and case law, we propose that in the EU law, the Consumer Credit Directive and the Markets in Financial Instruments Directive require updating in order to offer sufficient protection to vulnerable groups of consumers who, on average, have low levels of financial literacy.     

To B2C or Not to B2C. Some Reflections on the Regulation of Unfair Commercial Practices from a Polish Perspective

The article addresses the issue of whether EU consumer law and national implementing laws require the distinction between business-to-consumer (B2C) and business-to-business (B2B) relationships. The Polish experiences with the implementation of the Unfair Commercial Practice Directive supply this well-known discussion with new arguments. In Poland, the near copy–paste implementation of this directive was done in nearly timely fashion. The outcome, however, is far from being nearly unproblematic, as the new act is disconnected from the old system in a simplistic way. Subsequently, the institutional choice for enforcement creates both an inconsistency with EU law and enforcement deficiencies that undermine the directive's policy aimed at achieving a high level of consumer protection. Notwithstanding the imperfect Polish law-making and law enforcement, a success story may have been unlikely in any event. While in its inception it was announced as a consumer law instrument, the Unfair Commercial Practices Directive operates in a field dominated by competitors. Therefore, the correct transposition of this peculiar directive into national law, as well as its application, was and still is a challenging task. It is questionable if it is feasible at all. Ultimately, the tangible incoherencies and the existing desynchronization of protection against unfair commercial practices, both at the EU and national level, raise fundamental questions not only about the necessity of separate B2C and B2B regulations but also about the interplay between the laws of the EU and the Member States, in particular the new Member States, and about the way they mutually affect and interfere with each other.