Die Umsetzung der EU-Richtlinie über Wohnimmobilienkredite

The Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property (Mortgage Credit Directive) was complemented by new regulations regarding the assessment of customers’ creditworthiness through the Act Implementing the Mortgage Credit Directive and Amending Accounting Rules (Gesetz zur Umsetzung der Wohnimmobilienkreditrichtlinie und zur Änderung handelsrechtlicher Vorschriften) of 11 March 2016 in the law of obligations (Section 505a ff. Bürgerliches Gesetzbuch, BGB) and the regulatory law (Section 18a Kreditwesengesetz). Firstly, the dangers of the ‘extraordinary’ monetary policy of the ECB to the real estate market and a possible connectivity regarding the regulatory initiative are indicated. The contribution describes the purpose of the Directive, compares the new principles of creditworthiness assessment with the previous practice and analyses the consequences for banks and potential borrowers. It closes with a critical assessment of the EU wide regulation in this field and specifies approaches concerning a different German implementation in accordance with the Directive.     

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.     

Regime Market Performance Analysis: Informing European Consumer Policy

The Single Market of the European Union has progressed during recent decades to encompass more than 500 million consumers in 28 EU Member States and adjoining countries. During the same period, consumer issues have received growing policy interest and policy measures have been put in place to harmonize the Single Market, that is, to make national markets more alike. Yet, in order to provide policy measures that promote desirable market outcomes, the considerable challenge of understanding differences in the market performances of participating countries and the relationships between national markets and the Single Market need to be addressed. Consequently, this article proposes the consideration of differences in terms of regimes, that is, between groups of similar countries, when assessing the performances of markets. Differences in market performances are analysed with the Kruskal–Wallis test using survey data from the European Commission, and results were reviewed against market studies carried out by the Commission. Findings show that regime differences in market performance can indeed be observed and that the regime approach can draw policy attention to commonalities in market arrangements in addition to the consumer issues conventionally examined, such as price differences and consumer awareness.     

Reflections on Consumer Law and Policy in Seychelles

Consumerism only reached Seychelles after a wave of market-liberalization reforms adopted in 2008 as a response to a dire economic crisis. Consumer law is therefore only a recent phenomenon in the country. The main sources of inspiration for Seychelles legislation are the UN Guidelines on Consumer Protection, the EU Directive on unfair contract terms, and the South African Consumer Protection Act. Policy initiatives tend to be modelled either on other small island countries or on Commonwealth countries. The formal legal framework is overall modern and in line with international guidelines. However, the article identifies two sets of challenges encountered in practice. First, local standardization efforts fail to address the matter of poor-quality products entering the market, and this lack of local capacity is insufficiently complemented by reliance on international standards. Secondly, consumers seldom rely on the adjudicatory mechanism provided by consumer laws and informal settlement mechanisms are preferred, which comes at the cost of depriving consumer law operatives of precious interpretative materials, leaving areas of legal uncertainty. While policy guidance from the political sphere would be needed, it is unclear how much attention consumer matters will receive in the medium term.     

Making the Market Work: Enhancing Consumer Sovereignty Through the Telemarketing Sales Rule and the Distance Selling Directive

This article analyzes the provisions of the Telemarketing Sales Rule, which the Federal Trade Commission promulgated in 1995 pursuant to the 1994 Telemarketing and Consumer Fraud and Abuse Prevention Act. The author proposes a framework through which the Rule may be understood as embodying a regulatory strategy of controlling abusive telemarketing by enhancing the effectiveness of market forces. In particular, the Rule works by improving the quantity and quality of information flowing to consumers, preventing the occurrence of transactions that the consumer does not truly intend, preventing telemarketers from evading the effects of market forces governing availability of payment mechanisms, and enhancing the effectiveness of the contract regime.The article then applies the same framework to the 1997 Distance Selling Directive of the European Union, yielding several recommendations that EU member countries may find useful when transposing the Directive into national law. The author also discusses some of the special considerations that EU member countries should take account of when transposing the Directive's requirements in the context of electronic commerce.     

Policy implications

Abstract: In the European Union, the framework of financial services legislation at EU level has been aimed primarily at forming a single market for banks, insurers and other financial services firms. Substantial progress has been made towards this objective. Also, the EU initiatives have stimulated a reappraisal of national regulatory systems. Most of this EU legislation (with the exception of the consumer credit directives) has not had consumer protection as one of its main aims, although it has been assumed that consumers will eventually benefit from a wide choice of financial services providers and from price competition. However, partly in response to consumer pressure, the European Commission is developing a set of initiatives more closely geared to protecting consumers’ interests. Within the context of the EU’s approach, there remain considerable variations in the approach to protecting consumers’ interests in different member states as a result of legal and cultural differences.     

Product liability and product safety-complementary approaches to consumer safety. Some observations of the situation in the EEA

Abstract

In this paper the author asserts that product liability and product safety are complementary instruments to achieve a safer environment for consumers. Whereas legislation on product liability has a remedying function, legislation on product safety has a preventive one. The present situation in the EEA countries as regards the implementation of the Council Directives on Product Liability and Product Safety is summarized as well as the basic content of the Directives. It seems that almost all EEA countries have implemented the Liability Directive. The EFTA countries probably have-in comparison with the EU countries-to some extent a more positive implementation approach. It is too premature to foresee how the EEA countries will implement the Product Safety Directive of June 29, 1994. However, for many years most West European countries have had rules regulating product safety. The product safety policy in the EEA countries has been enhanced by co-operation within the OECD, the EU and the EFTA. Market control co-ordination will be an important part of the EEA efforts in the future to increase safety for consumers.     

The Proposed Guarantees Directive: Is It Fit for the Purpose?

The purpose of this article is to critically analyse the provisions of the proposed Directive on the sale of consumer goods and associated guarantees as it will apply, in particular, in the UK. The Directive addresses two perceived problems for the European consumer; the variation in the minimum legal guarantee currently provided by individual Member States, and the lack of clarity and difficulties in enforcement of additional guarantees provided by sellers and manufacturers. The article considers the detailed provisions of the Directive as to both the "legal guarantee" and the "commercial guarantee" and sets these provisions in a UK context in order to assess, specifically, their potential significance for consumers and consumer law in the UK.     

To Withdraw Or Not To Withdraw? Evaluation of the Mandatory Right of Withdrawal in Consumer Distance Selling Contracts Taking Into Account Its Behavioural Effects on Consumers

The right of withdrawal was introduced to European consumer law as an exception to the general contractual principle of pacta sunt servanda. It has recently been upheld in the Consumer Rights Directive as a mandatory right for consumers concluding distance selling contracts. Among various assessments of this measure a comprehensive evaluation thereof from the point of view of consumers’ interests is lacking. Such an assessment is conducted in this paper with consideration of the effect that the right of withdrawal is likely to have on consumers. The yardstick for the evaluation of the current rules, as well as for suggesting a new approach is the increased consumer welfare, which takes into account consumers’ happiness and their lack of regret for entering into transactions.     

EU Trade Policy in Light of the New Industrial Strategy for Europe

Intereconomics - EU trade policy, which is essential to a prosperous European economy and industry, has an important role to play in tackling the major challenges of our times relating to worsening...     

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.     

Dissemination of Consumer Law and Policy in South Africa

This article considers to what extent some important areas of South African consumer law have been influenced by the laws of international bodies, other countries or regional bodies or, in turn, influenced other laws in Southern Africa and beyond. It focuses on rules on product safety, product liability, remedies for defective quality of goods, some basic rules on unfair commercial practices and various aspects of consumer law relating to the use of mobile phones by South African consumers. The main piece of legislation considered is the Consumer Protection Act 68 of 2008 (“CPA”), which came into force in 2011. The article considers whether aspects of this legislation were influenced by the EC Product Safety Directive, EC Product Liability Directive, EC Consumer Sales Directive, EC Unfair Commercial Practices Directive and EC Directive on Misleading and Comparative Marketing. It shows how the relevant provisions of the CPA influenced the laws of some African countries. The article also considers various issues faced by consumers in the mobile phone sector, including defective handsets, defective services, the high cost of mobile calls and data, the lapsing of “unused” data after short periods, data “disappearing” faster than expected, unfair contract terms, unsolicited marketing and the complexity of mobile phone contracts, which leads consumers to overestimate or underestimate their future usage, therefore paying too much because they are on an ill-suited plan. Conclusion of agreements via mobile phones, marketing of additional services like ringtones and apps and unsolicited marketing via mobile phones are also considered. Some complaints regarding the use of mobile phones should be better provided for in legislation, and enforcement of consumer rights in this sector could be improved.     

How Safe Are the Harbors?

Abstract

With the growth of e-commerce has come the need for businesses to provide protection of personal, private data collected from internet users and consumers. The United States has favored a policy of industry self-regulation, while the European Union (EU) has responded to its consumer demands for privacy protection regulations and enforcement. Faced with the critical need for a middle ground, the US has proposed “Safe Harbor Privacy Principles” as a means of compromise with the EU. This article explores the market context of the Safe Harbor Principles, the European reaction, and the probable impact on businesses.     

Food Advertising and Obesity Prevention: What Role for the European Union?

When the Television Without Frontiers Directive (TVWF Directive) was first adopted in 1989, there was very little discussion on how food advertising should be regulated at Community level. However, things have changed as a result of rising levels of obesity in all EU Member States. Consequently, several stakeholders have suggested that the advertising of unhealthy food to children should be restricted. This article analyses whether and how, bearing the obesity epidemic in mind, the European Union could regulate the marketing of food high in fat, sugar and salt to children (HFSS food). It starts by presenting the evidence supporting such regulation. It then focuses on the contribution which the TVWF Directive and the Audiovisual Media Services Directive (AVMS Directive) could make to the debate. It finally looks at the broader regulatory framework by discussing their relationship with other instruments of Community law relating to food advertising, and in particular the Unfair Commercial Practices Directive (UCP Directive) and the recently adopted Regulation on nutrition and health claims made on foods.

The New Political Economy of EU State Aid Policy

Despite its importance and singularity, the EU’s state aid policy has attracted less scholarly attention than other elements of EU competition policy. Introducing the themes addressed by the special issue, this article briefly reviews the development of EU policy and highlights why the control of state aid matters. The Commission’s response to the current economic crisis notably in banking and the car industry is a key concern, but the interests of the special issue go far beyond. They include: the role of the European Commission in the development of EU policy, the politics of state aid, and a clash between models of capitalism. The special issue also examines the impact of EU policy. It investigates how EU state aid decisions affect not only industrial policy at the national level (and therefore at the EU level), but the welfare state and territorial relations within federal member states, the external implications of EU action and the strategies pursued by the Commission to limit any potential disadvantage to European firms, and the conflict between the EU’s expanding legal order and national.     

Consumer rights of the elderly as vulnerable consumers in South Africa: some comparative aspects of the Consumer Protection Act 68 of 2008

Although consumer protection is not a new concept in South African law, the Consumer Protection Act 68 of 2008 (CPA) now provides for a much more comprehensive and encompassing mechanism to protect consumers. Consumers are protected, not only in the provision of goods and services, the conclusion of contracts but also in the promotion and marketing thereof. The CPA further provides special protection to a particular type of consumer which is the vulnerable consumer and includes elderly consumers. Importantly, and for the first time in the history of South African law, the consumer is provided with eight core fundamental consumer rights. As this contribution is an attempt to provide an interdisciplinary analysis from a legal perspective, identification of what is considered to be an ‘elderly' consumer, needs to be assessed by referring to relevant empirical studies from both an international as well as South African perspective. The focus of this study is on the protection of the elderly as a category of vulnerable consumers in terms of the CPA. The investigation will attempt to show that the elderly is protected in terms of all eight of the fundamental consumer rights within the CPA. Special reference will be made to two fundamental rights of the consumer in terms of the CPA. First, the elderly consumer's right to equality in the consumer market (Part A of the CPA) which provides additional protection as the CPA also refers to the Constitutional right to equality. Second, the elderly consumer's the right to fair and responsible marketing (Part E of the CPA) which in terms of the research is compared with the EU Unfair Commercial Practices Directive. Certain problems regarding elderly consumers are identified and the importance of consumer rights as well as the implementation of the correct consumer policy is argued.     

Consumer Law and Policy in Kenya

This contribution seeks to examine the consumer protection law and policy in Kenya with a view to understand how consumer issues, such as product safety and product liability, are addressed as well as the remedies for defective goods. It also seeks to understand the available provisions on the safety standards of consumer products, such as mobile phones, by highlighting the consumer issues that arise for mobile phone users with particular reference to the services provided by mobile network operators (MNOs) – i.e., the financial services and products – and how the consumer protection regime has addressed them. It will conclude by examining how the Kenyan consumer law has manifested itself, either by its influence on other states’ consumer laws and policies or the way(s) in which its own laws have been influenced by foreign and supranational consumer laws. References will be made with regard to the influence by the European Commission (EC) Product Safety Directive, the EC Product Liability Directive, the EC Consumer Sales Directive and the EC Unfair Commercial Practices Directive. Furthermore, this contribution will highlight the challenges encountered with respect to the achievement of a consumer protection regime in Kenya, as a result of the fragmentation of the law and policies.     

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.     

A European Perspective on Consumer Loans and the Role of Credit Registries: the Need toReconcile Data Protection,Risk Management,Efficiency, Over-indebtedness,and a Better Prudential Supervision of the Financial System

The paper examines the role of credit registries in the context of European consumer credit markets and the current policies of the EU in this area. It attempts to show the institutional challenges relating to some competing rights or interests amongst consumers and financial institutions and the need for a strengthened prudential supervision of the financial system as evidenced by the recent crisis whose effects have spread into the global economy. In particular, it shows that there is a conflict between the right to data protection of consumers, the risk management interests of lenders, and the prudential supervision of the credit system. The ultimate goal, thus, is to present some weaknesses of the current arrangements and to put forward a proposal that is probably controversial but that is intended to stimulate a debate from an alternative policy perspective that is wider than the current one.     

Consumer Use of Informational Aids in Supermarkets

The behavioral science literature relating to consumer use of informational aids in supermarkets is reviewed. Also examined is research concerned with more general issues such as information overload. The public policy implications of these various research findings are drawn and discussed. The paper concludes with a consideration of three proposed measures to facilitate shopping decisions for consumers concerned with economy and nutritional value.