Consumer Class Actions: Are They a Solution for Enforcing Consumer Rights? The Israeli Model

Class actions were introduced into the Israeli legal system in order to overcome the difficulties in the enforcement of consumer laws. Despite extensive consumer legislation during the 1980s, consumer laws were not enforced until the mid 1990s. Only since the incorporation of class action procedures in the Consumer Protection Law in 1994 have consumer actions become more common. The introduction of class actions under the Consumer Protection Law (CPL) led to a revival of consumer protection law. As a result, legal discourse in the field of consumer law has completely changed. Nonetheless, even after 1994 more than 90% of class action applications were dismissed at the early stages. This paper analyses the reasons for the poor results of this procedure, and suggests reform by amending the CPL. The conclusion presented in this paper is that consumer class actions have great potential, but that their correct implementation depends on a better understanding of the purpose of consumer legislation.     

Enforcement Activity in Consumer Protection Regulation in Croatia

The law regulating consumer protection in the Republic of Croatia began its intensive development through the process of harmonization of Croatian legislation with EU law. Apart from the approximation of Croatian legislation with the acquis, in the pre-accession process, Croatia also undertook obligations to introduce and develop corresponding mechanisms for the efficient enforcement of consumer protection in practice. The development of consumer protection policy was recognized as a priority area in Croatia, and even before full membership, the process of implementing new directives in the area of consumer protection ran almost in parallel to and at the same pace as that of the Member States. Alongside the harmonization of its legislation with the EU consumer acquis, Croatia started developing a regulatory enforcement structure, including a whole series of mechanisms to achieve individual and collective protection of consumer rights. Among other things, the satisfactory development of regulatory enforcement activities in consumer protection was one of the preconditions for the successful completion of the accession negotiations and for signing the accession treaty. At the same time, the article suggests that in the area of both the individual and collective realization of consumer protection, there is a need for further progress through, on the one hand, developing administrative capacities and enhancing access to justice, as well as developing a system of out-of-court settlement of consumer disputes on the other.     

Policy and practice in Germany

Abstract: In Germany, EU directives have been the primary source of consumer protection legislation in banking and financial services, especially legislation on consumer credit and investment services. Otherwise, there is little significant statute law, either at federal or provincial (Länder) level, apart from a recent Consumer Bankruptcy Law. Most consumer problems have to be solved within the framework of the very general Civil Code or the law on unfair contract terms. This means that there is strong emphasis on the role of the courts in interpreting the law in specific cases. In recent years consumer organizations have played an important part in bringing class action cases in the courts – notably on issues concerned with value dating, bank charges and the early termination of mortgage and insurance contracts. There is virtually no tradition of securing consumer protection through codes of conduct. Banking ombudsman schemes have been set up in recent years, but are subject to some criticisms by consumer organizations.     

The New Zealand Fair Trading Act of 1986: Deceptive Advertising

In 1986, New Zealand introduced the Fair Trading Act, legislation aimed at consumer protection. This act was modeled after similar Australian legislation, while taking into account the legislation and precedents of other countries including the United States, England, and Canada. Although wording of different nations' legislation is often similar, unique national conditions may give rise to different interpretations. The emergence of the Act may indicate a movement toward minimal international standards in consumer protection legislation among common law countries and to a lesser extent, a large number of Western nations. This paper examines the content and performance of the Act concerning deceptive advertising. Available evidence suggests that the frequency and severity of deceptive advertising has declined. Knowledge of the New Zealand experience provides insight into the evolution of consumer protection legislation and insight for American firms planning commerce there.     

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.     

Financial Consumer Protection Regime in Malaysia: Assessment of the Legal and Regulatory Framework

This paper examines the status of the legal and regulatory framework for consumer protection in Malaysia, an emerging economy. Using leximetrics and notions of incomplete law, the paper explores the financial consumer protection regime in the country by examining two aspects of the legal framework: the legal infrastructure and typology of laws. The Malaysian legal framework for financial consumer protection is assessed in light of the good practices identified in international guidelines issued on the themes by OECD and the World Bank. The results highlight the complementary nature and different roles that laws, regulations, and supporting institutions play in achieving a comprehensive financial consumer protection framework in the country.     

Group Action in the Baltic States

The article is based on a study which aimed at examining the existence and use of group actions in consumer issues in the Baltic states. It was part of a larger research project in which the same questions were studied in all Central and Eastern European countries. Besides group actions in courts, administrative group actions were also studied.A starting point for the study was an overview of substantive consumer protection legislation in the Baltic states. In spite of the fact that there has been a rapid development in this field during recent years, the main finding was that many substantive law elements of consumers' collective interests, which in the EU Member States are often protected by different kinds of group actions, are as yet not regulated at all in the Baltic states or not regulated in a sufficiently detailed way in the Baltic states.The study showed that several kinds of group action exist in these countries. Firstly, there are administrative group actions for injunction. They are applied mainly in cases concerning product information, product safety, and unfair competition. Secondly, a group action by a consumer organisation for injunction in a court is, in principle, possible in Estonia and Lithuania, but not in Latvia. So far, no case law exists, however. A genuine group action for compensation is not possible in the Baltic countries, but a consumer organization may represent an individual consumer or a specified group of consumers in a court and may claim compensation on their behalf. The study showed that administrative group actions are a functioning part of the present consumer protection system in these countries, whereas court actions so far exist only on paper. It also showed that in the Baltic states, procedural means are in some matters better developed than substantive consumer law, whereas in many western countries, the exact opposite is the case. The article concludes with some recommendations as to how the Baltic states could develop their consumer protection legislation.     

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.     

Verbraucherpolitik als gewerkschaftliche Aufgabe

Trade unions and consumer policy. In the first part of his essay, the author discusses the position of the DGB (Deutscher Gewerkschaftsbund), the largest and most important of the West German trade unions, in the field of consumer policy. Consumer policy has been part of the statute of the DGB since 1971. Trade unions in West Germany regard themselves as consumer organisations because their members are consumers as well as employees, and consumer policy is understood to be part of the general economic policy of the unions. In 1975, the congress of the DGB accepted a programme of consumer policy. The programme demands that consumers rank equal with producers in the market. This goal should be reached by price competition (as a dominant factor of competition), by transparency (Markttransparenz) of prices and quality, and by the appointment of an ombudsman as a legal caretaker of consumer interests. The DGB rejects new consumer organisations, because in its view the trade unions constitute a well organised consumer institution. There is some cooperation, however, with the Arbeitsgemeinschaft der Verbraucher, the chief German organisation for consumer affairs. The author disagrees with legal writers who deny trade unions a right of claim against unfair competition and against unfair standard contract clauses, according to para. 13 of the German Unfair Competition Act. In the second part of his essay, the author analyses the legitimation of trade union consumer policy. The discussion concerns the question of whether or not employees are the only consumers who are in need of protection, and if there is a conflict between their interests as employees and as consumers. The author suggests that legal consumer protection should shield only individual persons as buyers (not small firms, for example). Furthermore, consumer interests should be defined from the perspective of the consumer who is anemployee. A consumer who is at the same time an employer, does not need protection because he can compensate for the disadvantages sustained in his consumer role by exploiting his position as an employer. Conversely, the employee-consumer has the weaker position in both of his roles. Another important question is whether or not there is a conflict between a high standard of consumer protection and a high level of wages. The author cites some economists who suggest that this conflict may be resolved, and that the real conflict is not between consumers and employees, but between those two on the one side and business on the other. The author draws the conclusion that there exists a theoretical legitimation for trade unions to represent the consumer interest. There is a wide gap, however, between the programmes of the trade unions and their policy as evidenced by their everyday activities. The hope is expressed that this gap will become narrower.     

海峡两岸保护消费者法律制度比较研究

大陆的《消费者权益保护法》和台湾地区的“消费者保护法”均制定于20世纪90年代,在消费者保护法的立法定位、调整对象、立法技术、具体保护措施和手段等方面都有着通性与共识。由于大陆与台湾在经济发展水平、立法习惯、市场成熟度、法制基础等方面有所不同,故大陆和台湾对消费者法律保护的程度也不同。     

Consumers’ subjective and objective consumerism knowledge and subsequent complaint behaviour concerning consumer electronics: a South African perspective

Although there is immense international support for consumer protection, the notion exists that consumer protection can only exist in developed countries with ample fiscal resources and expertise to properly act in the interest of consumers. This conception leaves consumers in emerging and transitional economies in a difficult position as these economies indeed generally lack sufficient funding and the required capacity to educate consumers on their rights. With the South African Consumer Protection Act that came into effect in 2011, South African consumers can now claim to be among the best protected consumers in the world. However, many consumers are still not aware of their consumer rights, and do not have the necessary knowledge to pursue redress when they are dissatisfied. The objective of this research was therefore to explore and describe the relationship between consumers’ knowledge of consumerism (consumer protection) and their consumer complaint behaviour (CCB) concerning their dissatisfaction with a technologically advanced product, in this case, a consumer electronic product. This study attempts to differentiate between subjective consumerism knowledge and objective consumerism knowledge and by extension the measures used. In addition, we explored and described the relationship between demographic variables and levels of subjective and objective consumerism knowledge as well as the combined effect of the two types of knowledge on CCB. The findings revealed that the respondents had a reasonable level of subjective consumerism knowledge relative to a low level of objective consumerism knowledge. No significant relationship was found between subjective consumerism knowledge and demographic variables. However, the factors of race, gender and level of income were related to objective knowledge. A higher level of subjective knowledge could be associated with public action. Respondents with reasonable levels of objective knowledge were also better equipped to take private and public action. CHAID (Chi‐Square Automatic Interaction Detection) analysis highlighted that a combination of subjective and objective knowledge was the best predictor of taking public action only and of taking both private and public complaint action. The study has implications for policy makers, consumer protection organisations, retailers and the individual consumer. Our approach to measuring knowledge of consumerism could possibly be applied in other emerging contexts where consumers generally lack awareness of consumer protection.     

Towards a Handbook on European Contract Law and Beyond: The Commission’s 2004 Communication “European Contract Law and the Revision of the <Emphasis Type="Italic">Acquis</Emphasis>: The Way Forward”

The European contract law project has crossed the threshold between an intellectual exercise and concrete policy. The 2004 Communication on the way forward describes the procedure to implement the policy suggested by the 2003 Action Plan, and so it would now be timely to give some thought to the likely impact of the Common Frame of Reference (CFR) on future Community law. It is submitted that the CFR is indispensable for the planned crafting of full harmonisation consumer contract law. This article therefore focuses on the possible uses of the CFR for consumer legislation and attempts to make the case for a recasting of Community law on consumer protection as a first priority in the implementation of the project. Based on policy papers and policy considerations, this article suggests making a test case of the travel and tourism sectors. It also reflects further on the potential virtues of an optional instrument for consumer legislation.     

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.     

Mobile Money and Financial Inclusion in Sub-Saharan Africa: the Moderating Role of Social Networks

ABSTRACT

The purpose of this article is to test the moderating effect of social networks in the relationship between mobile money usage and financial inclusion in rural Uganda. The results revealed that there is a significant and positive moderating effect of social networks in the relationship between mobile money usage and financial inclusion in rural Uganda. Besides, mobile money usage and social networks have direct and significant effects on financial inclusion in rural Uganda. Thus, the findings suggest that existence of social networks of strong and weak ties among mobile money users promote financial inclusion in rural Uganda. Previous studies have concentrated only on investigating the impact of mobile money in promoting financial inclusion in developing economies, especially in Sub-Saharan Africa. However, this particular study introduces the moderating effect of social networks in the relationship between mobile money usage and financial inclusion in rural Uganda, which seems to be sparse and lacking in literature.     

Minimum implementation of minimum directives? Consumer protection in Austria in the context of European integration

Once the EEA Agreement takes effect, consumer protection rules in Austria will have to conform to EC standards; the same holds true, if and when Austria is admitted to membership of the EC. The paper examines the general background of consumer protection rules in Austria compared to EC legislation, and puts this into the perspective of the Austrian efforts for integration. This is followed by an evaluation of the influence exerted by the EC internal market policy on consumer protection matters in Austria and a treatment of some specific problems concerning the implementation of EC rules in the country, in particular as regards product liability and package travel.     

Saying Nothing With Words

Good legislation depends on clearly articulated policy objectives. This paper argues that a significant threat to effective consumer protection is posed by fuzzy thinking at the policy-making stage. Three major Australian law reform initiatives are examined: the Contracts Review Act 1980 (New South Wales); new uniform truth in lending laws; and product liability legislation. In each case, effective policy choices were left unresolved, either because the choice was politically too difficult or simply because of a failure by the policy makers to perceive that there was a choice needing to be made. In each case, the problem has been disguised by resort to drafting at a high level of abstraction, and this serves to make rhetorical claims in support of the legislation seem plausible. The truth, however, is that legislation drafted this way is bound to be indeterminate and it is left to the courts to invent policy as part of the interpretation process. This is not a legitimate judicial function.     

Policies and practice in Denmark and Sweden

Abstract: Danish laws regulating banking and financial services organizations have no consumer protection provisions, although there is one law regulating a particular kind of payment instrument, the Payment Cards Act. However, general consumer protection law applies to banks and other financial services organizations, as well as other kinds of business. In particular, the Marketing Practices and Price Marking and Price Display Acts give responsibilities to the consumer ombudsman. This legal framework is complemented by guidelines issued – after consultation – by the consumer ombudsman, for example on conduct of business in bank advice, mortgage business and distance selling involving payment cards. The Danish system may be summarized as providing for standards of business behaviour laid down in general terms by law, backed by a supervisory authority with little power of coercion but playing an important role in influencing businesses to adopt high consumer protection standards and in negotiating solutions to problems as they emerge. The Swedish system is generally similar, but less advanced in the use of guidelines for the conduct of business. Both countries provide consumers who have unresolved complaints with easy access to alternative dispute resolution systems and the courts are rarely used to establish case law.     

Consumer protection in the Greek legislation

Greek law only recently has discovered the consumer as an object of protection. Even though there is no specific consumer legislation in Greece, case law and legal writing are becoming concerned with the inferior position of the consumer in the market place and are therefore developing more adequate instruments of protection. EEC legislation forces Greece to reform its law. The paper analyses different areas of law which have been shaped by the consumer impulse, most notably unfair and restrictive trade practices legislation, market regulations, product liability rules, and the prohibition of unfair contract terms. According to the author, implementation in these areas is not quite satisfactory, especially as far as conformity with EEC directives is concerned.

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Verbraucherschutz in der griechischen Gesetzgebung

Zusammenfassung Der Aufsatz gibt einen Überblick über den gegenwärtigen Stand des Verbraucherschutzes im griechischen Recht. Hier sind noch erhebliche Defizite festzustellen, da sich kein Gesetz speziell mit dem Schutz des Verbrauchers befaßt. Ein wichtiger Impuls für die Verbrauchergesetzgebung geht von der Notwendigkeit Griechenlands aus, sich den EG-Richtlinien anzupassen. Die Rechtsprechung benutzt die Generalklauseln, um den Schutz des Verbrauchers zu verbessern. Im Schrifttum zeigt sich ein verstärktes Interesse für theoretische und praktische Fragen des Verbraucherschutzes. Der Aufsatz untersucht dann im einzelnen die verbraucherpolitische Bedeutung des Wettbewerbsrechts (sowohl Lauterkeits- wie Beschränkungsrecht), des Marktordnungsrechts, des Produkthaftungsrechts und des Rechts der allgemeinen Geschäftsbedingungen. Hingewiesen wird auf Schutzlücken und auf Implementationsdefizite, insbesondere im Verhältnis zum EG-Recht, aber auch auf neue Tendenzen zur Anwendung und Reform des vorhandenen Instrumentariums.

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Elisa Alexandridou is Professor of Commercial Law at the Law Faculty, Demokritos University of Thrace, Queen Olgas 70, Thessaloniki, Greece.     

An investigative study of adult consumer education and lifelong learning needs in the United Kingdom and Latvia

Consumer education in Latvia is in the early stages of development and should be seen in the context of the rapidly changing society in the post‐Soviet era and the increasing influence of the marketplace, and Latvia's position as a new accession country. The Latvia University of Agriculture is in the process of developing an adult consumer education programme. A comparative study between the UK and Latvia was designed to test the hypothesis that many adult consumers lack knowledge and understanding of their consumer rights and responsibilities. A sample of adults in both countries completed a consumer rights questionnaire investigating attitude, knowledge and critical thinking ability. The UK questionnaire was modified, taking into account the different consumer environment in the two countries, to compare the need for adult consumer education in Latvia and the United Kingdom. In the United Kingdom results showed that the group overall were not confident that they knew enough about consumer rights and legislation or to resolve consumer problems and were unsure about their consumer responsibilities. Levels of knowledge were poor, leaving adults vulnerable to exploitation in the marketplace, uninformed about their responsibilities to voice dissatisfaction about goods and services, and unaware of how their consumer behaviour can affect the wider community. Adult participants in Latvia thought that they lacked education in consumer legal rights and responsibilities and did not have the necessary skills, knowledge and understanding to manage consumer problems effectively. Results in both countries indicate that adult consumer education is needed, supplemented by a comprehensive package of adult consumer education. Despite the cultural differences between the two countries, the analysis showed that similar adult consumer skills and attitudes were needed. This joint research has shown that this methodology could be used to determine adult consumer and life‐long consumer education needs in other European countries and internationally.     

Consumer Law and Policy in Ghana

This paper presents a picture of the landscape of consumer law and policy in Ghana and reviews the scope of protection of consumer interests with specific regard to product safety and liability, consumer sales, and telecommunication services. It assesses the legislative and policy framework on consumer contracts, product safety, and unfair commercial practices; discusses the role of national agencies in enforcing safety standards; and highlights some critical consumer issues in telecommunications service delivery. The paper examines the regulatory framework on other consumer issues such as advertising, labelling, and marketing of consumer products; terms and conditions of consumer contracts; and after sales services including the enforcement of guarantees, warranties, refund, and return policies. The paper also discusses the extent of external influence on the development of consumer law and policy in Ghana and reviews the level of interaction with other legal systems and supranational bodies in the three focal areas. The contribution also explores areas of Ghana’s consumer protection framework which could benefit from guidance from the EU transnational model on consumer protection and makes recommendations for the enhancement of the emerging legislative and policy regime on consumer protection in Ghana.