Individual Private Enforcement of Consumer Rights in Civil Courts in Europe

Abstract

In many areas, mandatory substantive law protects consumers. At first glance, this seems to indicate that the position of consumers is well-regulated and that consumers are well-protected. The question arises, however, whether consumers may actually make use of their substantive rights. Can consumers enforce their contractual rights through the ordinary courts when their counterpart is not willing to provide them with what they are entitled to receive under the contract they concluded with that counterpart? The focus in this paper is on the consumer’s access to justice through the ordinary court system. Therefore, I will address neither the enforcement of consumer rights through regulatory agencies or by way of collective redress, nor the enforcement of individual consumer rights through ADR institutions. In this paper, I will argue that awarding consumer rights without properly regulating the consumer’s access to the court system renders these rights to be unenforceable through the ordinary court system. It is argued that the normal rules of civil procedure in the national courts produce several disincentives for consumers to maintain their rights that they do so in an insufficient manner, which leads to underenforcement of (European) consumer law. Two fairly recent Europeans regulations - the European payment order procedure and the European small claims procedure - help improve the enforcement of consumer law, but do not take away these disincentives sufficiently.