Consumer Protection, Fair Dealing in Marketing Contracts and European Contract Law - A Uniform Law?

Abstract

The article discusses the relationship between consumer protection and contract law in the European Community context, and its bearing on the national legal systems of the Member States. It takes as a starting point the Green Paper on EU Consumer Protection of October 2001, an official (even if not legally binding) document of the European Commission, where it is stated that differences in national laws may create obstacles to the smooth working of the internal market, particularly in cross-trade between consumers and businesses, and therefore legal intervention at the EC level might be necessary in the form of either a framework directive on commercial practices coupled with specific directives (so-called mixed approach), or of a series of specific directives tackling individual problems. The Green Paper is then discussed in the light of several other official documents of the EC institutions and of some important inititives related to consumer protection and contract law (such as the Principles of European Contract Law, a kind of “Restatement” of European contract law), in order to assess the current state of the issue and possible future trends of development. The possibility of Community regulation in this field poses several problematic elements. The principle of enumerated competences and that of subsidiarity, which limit Community action, force it to frame the planned regulatory intervention in terms of obstacles to the working of the internal market created by different legal environments in the national legal systems; at the same time, most documents indirectly recognize that legal diversity is not in itself a sufficient reason for regulatory intervention, but only if this situation in fact hinders cross-border trade, an issue where there is strong disagreement. Even more problematic is the possibility of codifying at the Community level the whole of contract law, or, as it has been also proposed, the whole of private patrimonial law: not only is the issue of the existence of a sufficient legal basis for regulatory action very dubious, but what seems crucial, and yet almost completely neglected in the documents analysed, is the way that general contract law (or private patrimonial law) should be linked to the existing acquis communautaire in the field of consumer protection. Two possible strategies can be envisaged: either the protective rules of consumer law are kept as a separate body of law conceived as a limited exception to the general principles of freedom of contract, or the entire structure of contract law must be reviewed in order to take into consideration the existence of contracts with asymmetric powers of the parties, of which consumer contracts are one important (but not the only) example. Both alternatives have advantages and drawbacks, but at the moment it is almost impossible to forsee which of them, if any, will be experimented at the Community level, since the debate on it is still lacking at the official level. Yet, it seems that this is a crucial choice if EC law is to succeed in complementing national laws in this area. Finally, another controversial issue is how this body of Community law should relate to national laws: it could continue with the well-known minimum harmonisation technique, which allows states to retain more protective legislation, or, as it has been suggested, it could shift to a maximum harmonisation standard, which would severely impair flexibility for member States to adapt EC rules to national particular social and economic goals and needs.