Field Of Consumer Protection Research Articles

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

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.

Organising and Managing in Cause Sector

Non-government organisations or the NGOs have emerged as a parallel system to that of the government to take up the various issues related to socio-economic causes. However, though the cause sector has evolved over the years with the perspective of delivering adequate and timely relief to the beneficiaries, the fact remains that most of the NGO’s, particularly those operating in the field of consumer protection are not effectively managed due to the inadequacy of capacity. To meet the challenges of a competitive market NGOs will not only have to retain their beneficiary-orientation but also adopt a strategic planning approach to capacity building.

Europäisierung des Privatrechts - Zwischenbilanz und Perspektiven: Achte Tagung der Gesellschaft Junger Zivilrechtswissenschaftler Mainz, 10.-13. September 1997

On the occasion of its Eight Annual Meeting (Mainz, September 1997), the Society of Young Researchers in Civil Law tried to sum up the present-day discussion on 'Europeanisation of Private Law'. In the context of German legal scholarship, necessity and desirability of this process are still controversial even among younger authors. In the continental tradition of strict separation of public and private law, the EC remains a phenomenon to be described and controlled in terms of constitutional law. The actions of such a phenomenon with reference to private law relationships, therefore, appear as necessarily isolated and a dangerous interference with sovereignty and with the civil law system so fundamental to lawyers' state of mind. However, the economic and political necessities of market integration cannot avoid reshaping even basic structures of general private law (e.g. in the field of consumer protection). The very aim of the treaties is a continuous growth of general welfare within the legal community of Europe; the key mechanism to achieve that aim can be seen in the full release of private freedom and entrepreneurship. There can now can be observed, in EC law, complex and multipolar relationships between private parties, States, and the Community (e.g. in the well-known issue of directives' horizontal direct effect). This situation is not likely to be explained sufficiently by recourse to the fixed and formal sub-ordination structures of nineteenth-century rooted public law. Accordingly, the congress opened with reflections on the general question of competition or unification of legal orders in Europe. This basic feature emerged also in many contributions to specific problems. The congress continued with historical and comparative presentations. The crucial issue under all these perspectives is how to find models apt to meet the requirements of an unprecedented harmonisation process. Certain fields of substantive law were at the centre of the following lectures, especially Labour, Company, and Competition Law. Unfair competition and merger control was also discussed in a round table with renowned representatives of legal practice. The final contributions concerned Private International Law and methodological problems in European Law. The last mentioned aspect is of outstanding importance also for the current debate on the reform of legal studies in Germany. The bulk of knowledge tested in the state examinations has become too great; it even hampers a structural understanding of law. It could be, however, just the links of EC law to foreign legal systems and to other sciences that introduce the student to the inherent openness and incompleteness of law. Method will again turn out to be the only key to a high-level legal argument and practice, as it has always been. In the light of such developments, a further harmonisation of private law should be 'tolerable' even from the continental, systematic, point of view.