The Balance in Consumer Protection Between Substantive Law and Enforcement

Abstract

Traditionally, consumer law has suffered from underenforcement in many countries. Reasons are, in particular, insufficient incentives or means for individual enforcement, the lack of effective collective remedies and/or insufficient resources or the lack of interest of public authorities and/or consumer organizations. Thus, even where strict rules on substantive consumer protection exist, authors diagnosed an incentive not to comply with the law. Quite recently, the picture has changed, at least in certain sectors of business. This is mainly due to technological advancement. The use of digital technology, commonly referred to as ‘legal technology’ or ‘legal tech’, allows the legal profession to drastically increase the efficiency in handling claims. Legal tech claims management companies have been particularly successful in the area of air passengers’ rights but the use of legal tech has also facilitated the mass handling of similar claims, for example, resulting from the Volkswagen diesel scandal. This latter development led to a debate about „overenforcement“. It has been argued that a massive increase in enforcement of existing consumer law may necessitate the relaxation of the substantive law standard. This article discusses the relationship between substantive consumer law and its enforcement, thereby using examples from recent case law and from the current political debate.