The Impact of EU Norms and Policies on Consumer Protection Enforcement in Serbia

Pursuant to its 2008 Stabilization and Association Agreement governing the process of EU integration, Serbia is obliged to align its consumer protection standards (including those related to enforcement) with those of the EU. This article considers the overall approach to enforcement of consumer law in Serbia, focussing in particular on the extent to which EU enforcement principles have been successfully exported to Serbia and whether the goals of EU consumer policy have been achieved. It argues that the incorporation of EU norms has brought fundamental changes to Serbian enforcement mechanisms at a formal level, such as in relation to mediation processes as well as the introduction of injunctions for the protection of collective consumer interests. In practice, however, the impact of this incorporation is quite limited. A number of factors that restrict the practical effectiveness of the mediation processes and injunctions required by EU law are explored in the article, including weak sanctions, excessive reliance on poorly resourced consumer organizations, absence of a business culture of compliance or a sophisticated and determined consumer protection enforcement culture sufficiently grounded in expertise, as well as an overarching political, legislative, and institutional instability. These factors also undermine the general aim of EU policy to achieve effective consumer protection enforcement in the Serbian context.     

Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice

This article analyses the functioning in practice of the system of substantive regulation of unfair terms in consumer contracts, introduced into Macedonian law as part of the harmonization obligations of the EU accession process. Specifically, the article seeks to establish the possible reasons for the absence of substantial evidence of application of the rules on unfair contract terms in consumer contracts in Macedonian practice. In providing an explanation, the focus is on the transposition of the consumer acquis and the Unfair Contract Terms Directive into national law, the enforcement structure for consumer law, and the relationship with the pre-existing civil law. In sum, the inconsistencies and incompleteness of the transposition, the weak and complex enforcement structure, as well as the unsettled relationship with the already existing civil law rules on similar topics have all contributed to weaken the practical significance of the special law on unfair contract terms.     

Time to Do the Job Properly—The Case for a New Approach to EU Consumer Legislation

Following 25 years of legislative activity in the field of consumer law, the EU has proposed major reforms to the consumer law acquis. Existing legislation is largely based on directives harmonizing aspects of national consumer laws. This paper argues that a more appropriate approach for EU consumer law would be legislation in the form of a regulation which is applicable to cross-border transactions only. This argument will consider the constitutional constraints of the EU Treaties, before examining the case for a cross-border-only measure. It will be argued that the cross-border approach is preferable, because it would provide clearer benefits for consumers seeking to buy goods/services across borders, while not upsetting domestic law unnecessarily, in particular in the context of e-commerce.     

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.     

How Consumer Law Travels

This article synthesizes a number of the findings and themes emerging from the various case studies presented about the efficacy of the transplantation process of the EU consumer acquis in some of the EU accession and new Member States. Specifically, the article examines the process of incorporation through the lens of the domestication of the consumer rules either through the making of the local consumer laws or their subsequent enforcement in the case study jurisdictions. The overall conclusions from the case studies are that accession pressures are an important impetus for legal reform in consumer law, that there is limited tailoring of the rules in their transposition, and that there is slow take up by local actors in the resolution of consumer problems. The article suggests that getting it right in the law-making process in tailoring the rules to local needs or the extant local law may not be crucial for their subsequent efficacy, both because deliberations about the efficacy and fit of the rules may be irresolvable ex ante and because the relevant collocutors often do not exist at the time of original enactment of the consumer laws. Yet if the transplanted rules can be enlivened through local institutions as spaces for contestation of the rights and responsibilities that arise under consumer law, they can be domesticated or contextualized precisely through processes of ongoing contestation. From that perspective, it is institutional diversity in implementation in different jurisdictions, remedial hybridity and EU monitoring of the efficacy of local solutions that can help unblock suboptimal local outcomes.     

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.     

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.     

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.     

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.     

Turkey: Toward EU Accession

The purpose of this paper is to study selected aspects of Turkish accession to the EU. Joining the EU will require that Turkey attains macroeconomic stability, adopts the Common Agricultural Policy, and liberalizes its services and network industries. Furthermore, joining the EU will require Turkey to adopt and implement the whole body of EU legislation and standards – the acquis communautaire. According to the EU membership criteria, new members must be able to demonstrate the ‘ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union’. Thus Turkey will be expected to adopt the euro when it is ready to do so, but not immediately upon accession. Integration will boost allocative efficiency in the Turkish economy which in turn will make the country a better place to invest. Furthermore, Turkey will reap the benefits from monetary integration and from migration of labour to the EU. But the welfare gains will have a price, and the price will be the adjustment costs associated with the adoption of the acquis communautaire. The final section of the paper considers the effects of accession on the EU in terms of migration and budgetary effects.     

The Hungarian Cocktail of Competition Law and Consumer Protection: Should It Be Dissolved?

Hungary, a candidate country expecting to join the EU in 2004, has to approximate its laws and economic policies to those of the EU. However, it is not certain whether the Brussels standards will always improve national rules.This article will discuss one possible case. It concerns the special Hungarian legislation on competition law and certain consumer protection rules in the Competition Act of 1990 and the amended Act of 1996. The inclusion of rules governing consumer interests in the Acts greatly contributed to the recognition and the enforcement of consumer interests in Hungary.Nevertheless, the European Commission and the OECD increasingly argue that the Hungarian Office of Economic Competition should pass its competence in consumer related cases to another institution and instead pay more attention to more prominent fields of competition law such as horizontal agreements and mergers.This article will contest this argument. Although it is an understandable approach, there are several reasons why it should be carefully reconsidered. These include the position of consumers, which is still weak, the general system of consumer protection in Hungary, and the strong standing of the Office for Economic Competition. The comprehensive nature of the Hungarian Competition Act of 1996 is one of the cases in which the European guidelines should be considered with caution in order to determine whether their implementation would improve or damage a system that already functions well.     

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.     

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 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.     

Zielsetzungen und Instrumentarien der europäischen Verbraucherrechtspolitik: Eine Analyse von Entwicklungen im Bereich des Zivilrechts

Objectives and instruments of European consumer policy: An analysis of developments in the area of civil law. The paper discusses the relationships and conflicts between the objectives pursued by European consumer policy and the means which are at its disposal. As a first step, the theoretical assumptions of this policy are analysed by an evaluation of the EC Programme for a Consumer Protection and Information Policy of 1975 and of the draft directives on product liability, on misleading and unfair competition, on doorstep sales, and on correspondence courses. It is suggested that the European approach toward consumer protection largely corresponds to the policies prevailing at the national level: Consumer protection is seen as a supplement to the traditional market and competition policy which used to be restricted to regulating competition between producers or suppliers of goods and services, whereas the new policy focuses on the relations between producers and consumers. Nevertheless, consumer policy adheres to the basic presumptions of market economy. It presupposes that the demands of the consumer have to be articulated and satisfied via market processes. It therefore primarily relies on regulations directed against misleading advertising, on protecting justified expectations as to the quality of goods or services by providing redress for losses sustained, and by endeavours aimed at securing a more rational behaviour of the individual consumer. The most important means to promote this policy on the European level are the directives which aim at consonance among national laws (Art. 100 EC Treaty). This is indicative of a market orientation of consumer policy in so far as the harmonization of law is seen as a device for overcoming discriminating effects or distortions of competition created by the differences among national laws thereby furthering a better functioning of the Common Market (Art. 3 h EC Treaty). This accordance of consumer policy and harmonization policy does not rest on firm ground, however. In consumer policy it becomes more and more obvious that the efforts to protect the interests of the consumer lead to further interventionist activities. This process also reveals the need for systematic adjustments or consultations between consumer policy and other fields of politics. A harmonization policy which is primarily centered on breaking down trade barriers and on overcoming discriminating effects of competition cannot respond to the needs and problems of such interventionist activities. Therefore, the harmonization of consumer law should be conceived as a process of formulating broader policies directed at a congruous development of the economic sphere and at an improvement of the living conditions in the Common Market (cf. Art. 2 and the preamble of the EC Treaty). Legal techniques which might be adopted to support such an orientation are (a) in the EC directives to lay down minimum standards for the national legislation, (b) to use a conflict-of-laws approach which would allow to respect and try to coordinate legitimate interests in the application of national consumer policies, and (c) the development of special rules responding to the international aspects of the exchange between producers and consumers. At present, however, European policy gives hardly any attention to the chances and problems of such an approach requiring a complicated coordination of the various legal techniques.     

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.     

Romanian competition policy

Romania plans to complete its accession negotiations with the EU by the end of 2004 and hopes to join the EU in January 2007. The implementation of an effective competition policy is an essential part of this process. The following article examines Romanian competition policy and compares it to the EU's competition acquis.     

Institutional Design in Hungary: A Case Study of the Unfair Commercial Practices Directive

The adoption of the Unfair Commercial Practices Directive (UCPD) and its implementation in the EU Member States raised many academic and policy discussions on substantive issues such as the fairness notion, the substantive test of material distortion, as well as the concept of the average consumer. However, its influence on the Member States' enforcement regimes is equally far-reaching. This paper analyses on the one hand, how EU law, i.e., the UCPD, affected the traditional enforcement models of the Member States and on the other hand, how the allocation of enforcement powers to institutions who enforce the UCPD and the organizational design of these enforcement institutions influence the actual enforcement of EU law in the national legal context. This paper conducts a case study on Hungarian law and examines how Europeanization of unfair commercial practices has changed the Hungarian model of law enforcement. The paper finds that the changes in the Hungarian institutional framework had significant impact on how substantive rules are applied by the various enforcement agencies due to their different enforcement legacies. This case study shows that looking at institutional design provides a deeper understanding of local enforcement modalities, and it offers new insights for Europeanization strategies.     

粤港澳大湾区知识产权法律冲突及解决路径探析

自《内地与香港、澳门关于建立更紧密经贸关系的安排》(CEPA)实施以来,粤港澳一直将知识产权保护作为三地间实现贸易便利化、自由化过程中的一项重要任务。由于粤港澳三地间法律制度的差异,产生了管辖权、冲突法、实体法以及司法协助等诸多方面的冲突,这些差异直接导致三地间知识产权法律纠纷的发生。在粤港澳大湾区建设中,需要基于粤港澳现有知识产权法律制度,通过完善立法,强化司法和执法保护,纾解粤港澳大湾区现有知识产权法律冲突的困境,创新知识产权纠纷解决机制,以知识产权发展推动科技创新,为推进粤港澳大湾区建设营造良好的法治环境。     

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.