A European Contract Law,or an EU Contract Law Regulation for Consumers?

The paper informs about initiatives of the EC Commission to create a set of instruments for advancing a European contract law, in particular a “common frame of reference.” It questions the underlying assumptions in the still somewhat unclear and open Commission communications. It doubts whether EU has any competence to harmonise contract law under the internal market jurisdiction of Art. 95 EC. As an alternative, it proposes the elaboration and eventual adoption of an EU consumer contract law regulation (ECCLR) based on Art. 153 (3) b) EC which would take direct effect and be limited to minimal, yet directly applicable rules on consumer protection in contract law. Norbert Reich is Professor of Civil, Commercial, and EC Law at the University of Bremen. Mail address: Andreasstr. 29, D-22301 Hamburg, Germany. e-mail: n.reich1@gmx.net.     

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 European Commission's Green Paper on European Contract Law

In July 2001 the European Commission published a Communication to the Council and the European Parliament, its so-called "Green Paper" on European Contract Law (COM (2001) 398). This document seeks feedback on the options sketched by the Commission for future European Community action in the contract law field.The present note, which incorporates as an Appendix the text of the Green Paper itself, is designed to explain the background to the Commission's intervention (the first section, pp. 339–350 below), to provide a brief commentary on the content of the Green Paper (the second section, pp. 350–356) and then to assess the constitutional implications of a proposed advance towards a European Contract Law (the third section, pp. 356–371). It is argued that the debate about the creation of a European contract law is properly seen not merely as a matter of cultural feasibility and of commercial desirability, but that in addition assessment of the EC's potential contribution is heavily conditioned by increasing constitutional anxieties about the EC's legitimate role in the field of market regulation. The Green Paper avoids explicit treatment of the constitutional dimension of European contract law, yet, it is argued in this note, this is in fact unavoidable in the wake of the European Court's seminal judgment of October 2000 in the so-called "Tobacco Advertising" case in which it for the first time invalidated a measure of harmonisation of laws on the basis that an insufficient connection with the process of market-building had been shown by the European Community's legislature. This demands that the constitutional validity of legislative proposals in the field of contract law be examined with care, for the EC, an entity created by an international Treaty, has been endowed with no general competence as lawmaker in this or any other field, even though past legislative practice may have tended to obscure this constitutionally fundamental principle.     

From Grand Policy to Targeted Destruction: Consumers as Victims of EU Satellite Television Policy

In July 1997 the European Commission proposed a "Directive on the Legal protection of Service based on, or consisting of Conditional Access" (to various electronic systems).This paper considers the proposed Directive within the context of the European Union's failure to develop and maintain a coherent policy relating to satellite television broadcasts direct to the individual's home (DTH) within the nascent Single European Market (SEM), and the consequences of that policy failure for "ordinary" consumers who are highly unlikely to have a full understanding of the complex technical, legal and economic environment in which they are making their purchase(s).The paper illustrates how the failure to develop a SEM in DTH resulted in a fragmented market in which the frustrated demand for DTH programmes stimulated the growth of a quasi-legal or illegal markets in goods and services. Faced with legislative failure, companies have increasingly attempted to protect their perceived economic interests through an increasingly sophisticated "techno-war" in which ethical considerations relating to consumers found in the "normal market" appear to have been largely abandoned.The proposed Directive may be viewed as an attempt by interested elements of capital to harness European law to resolve a problem created by their own failure to fully observe European law. The proposed Directive is an indication of the failure to control the broadcasting environment by other means, and the paper gives consideration to the ethics of this development.Whilst the paper's prime is on DTH within the United Kingdom, consideration is also given to the wider EU (for consistency and simplicity the term EU is used throughout this paper).Because of the commercial relationships involved, and the questionable legality of some behaviour, it is not possible to identify all sources precisely. Much of the information has been gathered from formal and informal discussions and investigation, and information has frequently been provided on the clear understanding that the precise source cannot be identified.     

Dissemination of Consumer Law and Policy in Brazil: The Impact of EU Law

Journal of Consumer Policy - This paper analyses the influence of European Law on Brazilian Consumer Law. It starts by describing the general features of Brazilian Consumer Protection law,...     

Nanomaterials and the Precautionary Principle in the EU

This article focuses on the risks of nanomaterials and nanotechnologies, and the challenges they pose to European consumer law. These risks are exemplary for the sociological phenomenon of modern risk society, living under the condition of uncertainty with regard to the likelihood and the extent of possible negative effects. Generally, in law important functions in risk societies are fulfilled by the precautionary principle. It serves both, as a justification for state measures vis-à-vis other legal interests, especially economic human rights, and as a request for state action in response to possible risks. This paper will argue that the precautionary principle applies at least to health protection as a core part of consumer protection and basically EU law is well equipped to deal with uncertainties. This is established in case law and practice. However, although there is pressure to apply the precautionary principle to nanomaterials and nanotechnologies, the European Commission has adopted a rather modest approach. That has been criticized especially by the European Parliament. For dealing with the gap in basic research and methodology, this article suggests a burden sharing in financing taking into account both, the precautionary principle and the principle of proportionality.     

On the European Responsibility in the Agricultural Multilateral Trade Negotiations: Modelling the Impacts of the Common Agricultural Policy

The present round of multilateral trade negotiations is still deadlocked over agricultural trade. The European Union (EU) is urged by its trading partners to open its agricultural markets. Economic evaluations of trade liberalisation scenarios unanimously conclude that a substantial opening of agricultural markets is required for a successful (welfare‐improving) Doha Round. In this paper, we perform new evaluations to identify precisely the contributions of the European farm policy and to examine the robustness of these evaluations in the representation of this complex policy. Using the same specifications as in major previous studies, our first simulations show that the EU has a major responsibility in delivering significant gains to the developing countries. On the other hand, when we conduct the same experiments with a more relevant calibration and modelling of the European farm policy instruments, the gains that these developing countries may reap from the EU liberalisation are considerably reduced. Accordingly the current charge against the EU is simply inopportune.     

Face and Emotion Recognition on Commercial Property under EU Data Protection Law

This paper integrates and cuts through domains of privacy law and biometrics. Specifically, this paper presents a legal analysis on the use of Automated Facial Recognition Systems (the AFRS) in commercial (retail store) settings within the European Union data protection framework. The AFRS is a typical instance of biometric technologies, where a distributed system of dozens of low‐cost cameras uses psychological states, sociodemographic characteristics, and identity recognition algorithms on thousands of passers‐by and customers. Current use cases and theoretical possibilities are discussed due to the technology's potential of becoming a substantial privacy issue. First, this paper introduces the AFRS and EU data protection law. This is followed by an analysis of European Data protection law and its application in relation to the use of the AFRS, including requirements concerning data quality and legitimate processing of personal data, which, finally, leads to an overview of measures that traders can take to comply with data protection law, including by means of information, consent, and anonymization.     

Understanding the Enforcement Malfunction of Consumer Legislation in Serbia

The new Serbian Law on Consumer Protection was passed in October 2010, and its enactment and general outlook may be attributed to the continuous political pressure and financial and technical support by the European Union (EU). This paper outlines several factors that may have contributed to the weakness of enforcement in Serbia, so that while consumer legislation is fairly harmonized with the EU acquis, national standards of consumer protection lag behind those in the EU. These tentative explanations of the enforcement malfunction include (1) the lack of institutional capacity to receive the professional and technical support of the EU, (2) external pressure as the main incentive for legislative change, (3) the lack of belief in the social relevance of legislative changes as such, (4) the deficiency of the enforcement mechanisms and the lack of appreciation of their importance, and (5) the absence of cooperation between the stakeholders and institutional resistance to change. Consumer protection is not an exceptional field characterized by the risks of enforcement failure. Moreover, the difficulties described in the article are not limited to Serbia, as they also happen in other jurisdictions, even if in different shapes and forms. The success of aligning the national norms to those of the EU and the success of legal transplants in general are always quite uncertain. In that sense, the case of consumer policy in Serbia should be understood as an instance that may illuminate a class of phenomena.     

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.     

The Principles of European Contract Law and the Protection of the Weaker Party

The Principles of European Contract Law (PECL) must be seen as a major step forward in the development of a body of European rules and principles which enshrine the common heritage of different national legal orders and cultures. They are meant to define general rules equally applicable to any person independent of his or her status as a professional supplier and/or as a consumer. The leading principles are party autonomy and self-determination, restricted by the notion of good faith. This paper tests whether and to what degree the European Principles manage to deal with consumer protection law as it has developed over the last 20 or 30 years. It is argued that – with some effort – the European Principles can be read so as to leave room for integrating the protection of the weaker party, albeit to a limited extent only. The insufficiencies can be overcome only by merging the acquis communautaire in consumer law with the European Principles.     

Incorporating Fairness into Development of an Integrated Multi-agent Online Dispute Resolution Environment

The paper describes the development of an integrated multi-agent online dispute resolution environment called IMODRE that was designed to assist parties involved in Australian family law disputes achieve legally fairer negotiated outcomes. The system extends our previous work in developing negotiation support systems Family_Winner and AssetDivider. In this environment one agent uses a Bayesian Belief Network expertly modeled with knowledge of the Australian Family Law domain to advise disputants of their Best Alternatives to Negotiated Agreements. Another agent incorporates the percentage split of marital property into an integrative bargaining process and applies heuristics and game theory to equitably distribute marital property assets and facilitate further trade-offs. We use this system to add greater fairness to Family property law negotiations.     

中国、美国、欧盟反倾销法的差异比较和借鉴

美国和欧盟是我国重要的贸易伙伴,也是对我国提起反倾销申诉比较多的国家和地区。本文对中国、美国和欧盟反倾销法的主要差异进行了比较研究,指出了中国与美欧反倾销法的分歧和冲突,以及中国反倾销法的若干不足之处,为完善我国的反倾销法提供借鉴。     

The Affordability of Energy: How Much Protection for the Vulnerable Consumers?

Affordability is a new “alien” concept penetrating the field of contract and consumer law as one of the obligations related to the provision of “universal services” or “public service” in the context of services of general economic interest. Affordability becomes an important element of the European social model (using Scharf’s terminology; Scharf, J Common Mark Stud 40:645–670, 2002) and its constitutional dimension will be confirmed by the Treaty of Lisbon and the Charter of Fundamental Rights of the European Union (EU). The major European Commission policy tool for ensuring the Affordability of Energy Supply is, on the one hand, functioning competition, which should bring about reasonable prices in general, and on the other hand, regulation targeted at so-called vulnerable consumers. First tested in the UK, it was later spread mainly by the requirements of the Second Energy Package in other Member States (MS). The Third Energy Package (to be implemented by March 2011) further develops this idea and clarifies the set of obligations that the protection of consumers and ensuring the Affordability of Energy Supply require in the understanding of the EU legislator. One could speculate to what extent this is a reaction to the fact that some MS and, in particular, the new MS did not implement the consumer protection requirements of the Second Energy Package, but rather opted for very different regulatory strategies. This paper will examine different regulatory strategies employed in four MS (the UK, France, the Czech Republic, and Slovakia), with special focus on the situation in the two new MS, in order to respond to the question as to whether these different regulatory strategies provide what is promised, i.e., affordable energy for all.     

Technology competition and regulatory advantage

The importance of competition law as a policy lever to help the EU compete at the forefront of science and technology seems to have been overlooked by the Commission. As a consequence, the EU appears to be at a disadvantage to the USA in terms of the regulatory environment for intellectual property and licensing practices. This article examines these differences and explores the pros and cons of the European and American approaches to competition law, ultimately arguing in favour of regulatory harmonisation.     

Looking Ahead—Future Issues when Reflecting on the Place of the iConsumer in Consumer Law and Copyright Law

The following is a brief report of the discussion and main comments that were made during a workshop ‘The place of the iConsumer in EU and US law—protecting consumers of copyright protected content’, held in Amsterdam on 14 and 15 of December 2007. The workshop was part of a series of joint events organised by the Berkeley Centre for Law and Technology, University of California (BCLT) and the Institute for Information Law (IViR), University of Amsterdam on copyright and a follow-up to the conference on ‘Copyright, digital rights management technology and consumer protection’ that was held at the UC Berkeley in March 2007. The main goal of the workshop was to confront a consumer law approach with the more commonly discussed approach of internalising user-related questions directly into copyright law. To this end, a selected group of European and US experts in both fields, copyright law and consumer law, were invited. The participants were then asked to share their thoughts and views from the different fields of law with regard to a number of main statements given by the organisers. The transatlantic perspective further added to the discussion. The main purpose of this report is to point to a number of issues that, according to the workshop participants, should be taken into account in future discussions concerning the legal position of the iConsumer. This report summarises the discussion along the three statements that the organisers asked participants to consider. The report gives some background information for each of the statements, to then describe the main arguments made during the workshop, to the extent that this discussion has not already been internalised in the papers that are part of this special JCP issue.

EU Enlargement Creating a Framework for the Eu-Russian Rapprochement

Abstract

The Eastern enlargement of the European Union has substantial influence on EU external policy and its relations with non-EU countries, including Russia. In this situation, Russia's main concern is to avoid the creation of new dividing lines after the enlargement. This paper will argue that instead of dividing Europe, the EU enlargement would create a framework for further cooperation and eventually rapprochement between the EU and Russia. Therefore, Russia would be able to benefit from this process. The paper will analyse the consequences of the EU enlargement for Russia and examine the main political concepts determining directions of this rapprochement between the European Union and Russia: New Neighbourhood, Common Spaces and Eastern dimension.     

Going for the Wallet? Rule-of-Law Conditionality in the Next EU Multiannual Financial Framework

EU funds that promote economic convergence will hardly reach their objective in countries sliding toward a system that lacks effective checks and balances.The idea of financially sanctioning EU Member States has been advocated for some time and took shape concretely in May 2018. The European Commission presented a draft regulation to sanction Member States with “generalised deficiencies” in the rule of law, which was presented together with a comprehensive proposal for the next MFF.     

Consumer policy in Latvia

As part of the legislative programs to facilitate the transition to a market economy, the governments of Eastern European States and the former Soviet Union have begun enacting comprehensive consumer protection acts. These statutes have taken a variety of forms, and frequently have drawn upon the experiences of the West for guidance. The Latvian Consumer Law is a noteworthy example that takes consumer rights seriously. This paper analyzes the strengths and weaknesses of the statute, with particular emphasis on the compatibility of its provisions with EU norms. The Law addresses most of the core issues in contemporary consumer policy — including product and service liability, warranty, unfair terms, information disclosure, enforcement, and the role of consumer organizations — in a manner that could serve well as a model for other economies in transition.

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Zusammenfassung Verbraucherpolitik in Lettland. Die Regierungen der osteuropäischen Staaten und der Staaten der früheren Sowjetunion haben als Teil ihrer gesetzgeberischen Vorhaben zur Erleichterung des übergangs in eine Marktwirtschaft damit begonnen, umfassende Verbraucherschutzgesetze zu erlassen. Solche Gesetze sind in vielfältigen Formen und mithilfe westlicher Erfahrungen entstanden. Das lettische Verbraucherrecht ist ein bemerkenswertes Beispiel und macht Ernst mit den Verbraucherrechten. Der Beitrag untersucht die Stärken und Schwächen des Gesetzes unter dem besonderen Aspekt der Vereinbarkeit seiner Regelungen mit EU-Normen. Das Gesetz berücksichtigt alle wichtigen Bereiche der herrschenden Verbraucherpolitik — dazu gehören Produkt- und Servicehaftung, Garantieleistungen, unlautere Geschäftsbedingungen, Informationsauflagen, Rechtsdurchsetzung und die Rolle von Verbraucherorganisationen — und kann als Modell für andere Volkswirtschaften im übergang zur Marktwirtschaft dienen.

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He served as the working group leader on law reform for the International Baltic Economic Commission in 1991, and as a consultant to the legislative committee that drafted the Consumer Law for the Republic of Latvia in 1992.Law student Terence Slywka provided valuable research assistance during the writing of this article.     

Künftige Finanzplanung der EU — neue Prioritäten,höhere Effizienz?

On May 2, 2018, the European Commission proposed a limited and realistic increase for the EU’s next multi-annual financial framework 2021–2027. The draft implies a roughly constant common budget for the EU with a focus on European stabilisation policy and the provision of centralised public goods provision rather than agriculture and cohesion. This shift mirrors the priorities spelled out by Emanuel Macron. However, the Commission combined this pragmatism with its interest in improving budgetary flexibility and autonomy. There is no doubt that the EU27 faces difficult negotiations. EU Member States’ initial reactions to the European Commision’s recent proposals were dominated by juste retour considerations reminiscent of past negotiations. Strengthening EU expenditure through European added value and fundamentally reforming their own resource system, including the introduction of tax-based own resources, will end the deadlock surrounding net position thinking. A more fundamental view on the fiscal policy of the European Union is given in the last paper, which states that the EU requires a complete overhaul of the economic governance structure. It offers a tentative approach that avoids moral hazard problems as well as fallacies about conditional backstops during times of crisis.