Enforcement Of Consumer Law Research Articles

The Age of Consumer Law Enforcement in the European Union: High Hopes or Wishful Thinking?

Abstract Not since 2018 and the “New Deal for Consumers” package has the European Union (EU) seemed so close to stepping up the enforcement of consumer protection rules. The European Commission is expected to unveil a new “consumer enforcement package” by the end of the year, which should include revisions of the Regulation on Consumer Protection Cooperation, the Directive on Consumer Alternative Dispute Resolution and the Regulation on EU Online Dispute Resolution. In parallel, the Representative Actions Directive came into force recently. This paper examines these different initiatives and assesses whether these evolutions can truly be the first steps towards a brighter future for the enforcement of consumer protection rules in the EU or whether they are likely to remain a series of missed opportunities.

The nexus between household consumption, consumer protection, and consumer confidence in European countries. A statistical-mathematical analysis

In this manuscript, the authors face the following research question: do consumer protection and consumer confidence have predictive power on household consumption? In order to provide an answer, the authors adopted a proper mathematical-statistical method. In particular, they collected cross-sectional data on 27 European countries and then estimated a consumption function accounting for both the Post-Keynesian Absolute Income Hypothesis and the Neoclassical Life-Cycle Hypothesis. This consumption function comprises, as a control variable, the Consumer Conditions Index, a measure of consumer protection calculated by the EU Commission. Moreover, the authors distinguished the effects on household consumption of three different aspects of consumer protection: Consumer knowledge of their rights and trust, Compliance and enforcement of consumer law, and Complaints and dispute resolution between consumers and retailers. The authors? findings suggest that consumer protection may represent a transmission channel for consumer confidence.

The Constant Change of EU Consumer Law: The Real Deal or Just an Illusion?

EU consumer law is in a process of constant change. Over the past several decades EU consumer law has gone through many changes, reaffirming the statement by Greek philosopher Heraclitus: the only constant is change (Panta Rhei). This paper emphasizes the transformative nature of EU consumer law and its constant changes. Firstly, the paper addresses the changes in legal grounds and competences, as the roots of EU consumer law. Secondly, it presents the changes of the levels of harmonization and their impact on EU consumer directives and the national laws of the Member States. It continues by observing the impact of the CJEU’s uniform and autonomous interpretation on the national case law of the Member States and consumer law enforcement. In conclusion, the paper accentuates the role of the transparency requirements and information duties in online ‘business-to-consumer’ (B2C) transactions as fundamental aspects affecting the future of EU consumer law.

Public Enforcement of Consumer Law in Poland: Mission Impossible?

Public Enforcement of Consumer Law in Poland: Mission Impossible?

Protecting Consumer Protection: Filling the Federal Enforcement Gap

Since 2014, when a first-of-its-kind empirical study looked at how public enforcers use their authority under UDAP laws, the enforcement landscape has changed. Most notably, the Trump Administration has weakened enforcement on the federal level. In the wake of this political shift, many state enforcers rushed to fill the gap left by weak federal enforcement. At the same time, the state enforcers themselves experienced changes both internal (including changes to budgets and stated policy priorities) and external (electoral changes regarding state Attorneys General, changes to statutory authority, and other changes governing the enforcer’s authority). This article presents findings from a follow-up study examining the public UDAP enforcement landscape in 2018. The principal finding from 2018 is that states employed substantially the same strategies toward UDAP enforcement as they did in 2014. This finding validates the central observation of both years’ studies of state UDAP enforcement: states can be characterized by distinct strategies of consumer protection enforcement. This information alone offers insight into the remarkable stability of state UDAP enforcement, even across varied strategies and a changing landscape. Other findings also begin to shed light on how states might react to extreme changes in enforcement on the federal level. For example, even though six states have made public statements backed by concrete actions to attempt to fill an enforcement gap left by the absence of federal action, state enforcement case volume was up among all states. Public compensation, however, was down among all types of enforcement actions in 2018. Finally, comparisons of enforcement case volumes and strategy across states that experienced other changes over the time period -- changes in leadership and statutory authority, for example -- mirrored the overall trend of an increase in enforcement coupled with a general strategic stability. Strategies as a whole do not seem closely aligned with partisan politics. This study creates a needed point of comparison to the 2014 data, allowing stakeholders to ask deeper questions about how public enforcers should wield their discretion and authority to resolve consumer protection cases. With debt levels in America at an all-time high, and federal enforcement of consumer law at an all-time low, research-based action is urgently needed to sharpen our understanding of the role and potential effectiveness of institutions tasked with protecting consumers from fraudulent lending schemes and oppressive debt collection strategies as well as the myriad other types of consumer scams that lead Americans toward more debt. The data here give state officials and state-based reformers the information needed to maximize enforcement in a way that makes consumers’ lives better.

Adaptation of consumer law to the digital age: EU Directive 2019/2161 on modernisation and better enforcement of consumer law

This Paper examines the most important innovations in the recently adopted European Directive 2019/2161 on better enforcement and modernisation of Union consumer protection rules. First, by adding the innovative rules, such as the ones on the trustworthiness of online reviews, the Directive aims to adapt the European regulatory framework on consumer protection to the challenges and particularities of the digital age and the digital market. Second, through the sharp rise of the fines for breach of consumer law and through the introduction of a mandatory individual remedy to the consumers who has been a victim of unfair commercial practices, the Directive substantially contributes to strengthening of the general enforcement mechanism of EU consumer law and achievement of high level of consumer protection.

Coronavirus As a Catalyst to Transform Consumer Policy and Enforcement

A review of the unfair commercial practices (including price gouging) that have emerged in the context of the pandemic lead us to reflect on how effective consumer law enforcement is at this juncture. This article calls for the pandemic to act as a catalyst to review the way consumer law has so far approached markets and their regulation. It argues that now, more than ever, consumer law needs to protect the vulnerable and public enforcement mechanisms must be able to prevent harm as much as possible rather than repair it. Fairness should be by design and not something that is offered to consumers simply as a remedy. The article explores some viable solutions to effect this transformation of consumer policy and enforcement beyond the pandemic.

Consumer Law, Enforcement and the New Deal for Consumers

A key trend for consumer law and policy in Europe has been the progressive expansion of consumer rights. It has long been recognized that the vindication of consumer rights is challenging. The expansion of consumer rights from the 1960s was accompanied by the establishment of proactive regulatory agencies whose enforcement powers complement and to some degree displace mechanisms of individual consumer enforcement. In April 2018 the European Commission proposed extensive reforms of consumer law and policy in its New Deal for Consumers, a key component of which is a further significant shift away from judicial enforcement. This trend is balanced by new proposals to enhance opportunities for collective consumer redress. In this article I offer an assessment of where we are today with the varied mechanisms and trends for enforcement of consumer law and where we are heading, not simply with the New Deal for Consumers, but also with related policies such as the Digital Single Market Strategy. Overall the pattern suggests a number of key trends including: a shift from reactive to more proactive modes of enforcement; from individuated to more collective modes; more evidence of meta-regulatory approaches, and; greater cooperation in enforcement (both public private and transnational). These trends are not necessarily consistent as between each other, generating potential for tensions between approaches and underlying assumptions about both purposes and effectiveness in consumer law and policy. Consumer Law, Enforcement, European Union

The Apple Case Today: Factual and Legal Assessment

Enforcement represents the most challenging task of consumer law. In the Eurpean Union, consumers are typically faced with numerous problems when it comes to protection of their consumer rights which have been infringed. This Paper examines the Apple case as one of the most successful examples of enforcement of EU consumer law that took place in a dozen of EU Member States. Apple was found to have breached a number of the provisions of EU consumer law that deal with the issues of legal and commercial guarantee and the fairness of commercial practices and contract terms. The Apple case may be used as a model of a successful, pan-European enforcement of consumer law.

How to Sanction a Breach of Information Duties of the Consumer Rights Directive?

Traders must provide information to consumers according to the Consumer, Rights Directive in case they conclude a distance contract, an off-premises contract, or a contract in another manner. It is the task of the Member States to sanction breaches of those information duties. This article classifies the information duties on basis of their objective, namely supporting decision-making, enabling storing information, and facilitating the exercise of rights. Subsequently, it addresses the question of how German, English, and Dutch law provide for sanctions in case traders breach those information duties. This article shows that the way breaches are being sanctioned in Germany, England, and the Netherlands, inter alia depends on choices that have been made regarding the legal consequences of unfair commercial practices and the enforcement of consumer law. It further shows that the actual use of sanctions depends on the question: ‘who can apply a sanction and what does this actor has to prove?’

CONSUMER PROTECTION IN PRACTICE - TRANSNATIONAL COMPARATIVE ACCOUNT OF COLLECTIVE REDRESS MECHANISMS

This article constitutes a continuation of the research conducted so far in the domain of collective consumer redress in the European Union. The aim of the article is to discuss the issue of various legal mechanisms functioning in the selected EU Member States that serve consumers as a means of collective redress. In the first part of this paper, it was presented that the models of consumer protection vary significantly in the individual Member States. After having scrutinized some terminological remarks regarding consumer law enforcement, the main analysis focuses on the legal solutions adopted in Belgium. In the second part of the discussion, the author presents relevant legal solutions adopted in the UK and the Netherlands. Specifically, the author discusses the various approaches to the issues fitting in the dichotomic scheme, that is, the so-called opt-out and opt-in mechanisms. Special consideration is devoted to the issue of admissibility of collective redress and legal standing to bring collective actions. The paper employs dogmatic and analytical methods for the process of interpretation of the normative material and the analysis of case law. The study uses the comparative perspective to identify solutions emerging from effective practices found in legal systems of the EU Member States. The findings emerging from the analysis show how significantly the Dutch and English systems of collective redress vary. The article also provides some tentative conclusions that would make it possible to decide which legal solutions operating with success in those jurisdictions could be adopted into Polish law.

Towards Collaborative Governance of European Remedial and Procedural Law?

Abstract This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution (ADR). It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights (CFR). It concludes with policy recommendations concerning how the various consumer enforcement mechanisms should be coordinated at the EU and national level to ensure comprehensive and effective protection in compliance with fundamental rights.

On the Transformations of European Consumer Enforcement Law: Judicial and Administrative Trialogues, Instruments and Effects

The enforcement of consumer law is characterized by a combination of judicial and administrative regimes that involve European and national institutions. The principle of sincere cooperation, enshrined in Art. 4(3) TEU, imposes the engagement of institutional dialogue based on loyalty. Increasingly, the Charter of Fundamental Rights (CFR) and, in particular Art. 47 CFR, plays a role in shaping enforcement both before courts and before administrative authorities exercising enforcement power. The separation between rights (at the EU level) and remedies (at the Member State level) has disintegrated, driven by the principles of equivalence and effectiveness.Fundamental rights and in particular the right to fair trial and to effective judicial protection are increasingly influencing both administrative enforcement and the scope of judicial review.The role of national courts as enforcers of EU law has long been recognized. However, the modes of interaction between administrative and judicial enforcement has been initially neglected; in recent years, increasing attention has been devoted to the coordination of different enforcement mechanisms, including private justice. This contribution examines the weaknesses of institutional design of the interaction between courts and administrative authorities exercising enforcement powers, broadly defined. Institutional dialogue between European and domestic enforcement bodies has been an important driver of legal innovation in European consumer law. The different levels of enforcement are not separate but rather interact continuously and often strategically. This chapter addresses and compares the different forms of institutional dialogue that have characterized judicial and administrative enforcement in consumer law and the potential role of Art. 47 CFR on the right to effective judicial protection. It shows that there is an erosion of the principle of procedural autonomy, in respect of which fundamental rights and general principles play an increasing role in defining the architecture of consumer enforcement. It concludes by analyzing how judicial and administrative enforcement of consumer law may be recombined in the light of the Charter’s impact. The shift from the multilevel approach to the dialogical approach forces us to rethink how national and European enforcers interplay, creating a body of rules strained between uniformity and diversity. The perspective of strategic interaction offers additional and more convincing explanations to the conventional multilevel literature and especially to the concrete operations of enforcement mechanisms.

The ADR Directive: Designed to Fail? A Hole-Ridden Stairway to Consumer Justice

Abstract: The European legislator adopted the new Alternative Dispute Resolution (ADR) Directive with an aim to create an additional, attractive stairway to consumer justice. As such, the ADR Directive intends to encourage more consumers to invoke their consumer rights and thus strengthen consumer law enforcement. However, in order to realize the Commission’s goals, this stairway must also be able to be negotiated (i.e., it must be effective) and it must actually lead to consumer justice (it must be fair). This article questions whether the ADR Directive’s regime is appropriately designed to achieve these results and, consequently, to entice more consumers to claim their rights in the future. This assessment is conducted considering the potential impact of the ADR Directive on consumer behaviour, with respect to mitigating their ‘biases’ against the effectiveness of ADR procedures and their perception of fairness of ADR entities. I examine whether the ADR Directive is likely to eliminate or at least diminish such biases more than in the case of judicial procedures. Throughout this article, based on the analysis of consumer attitudes and beliefs towards ADR, I indicate where the ADR Directive fails to provide more or better regulation, arguing that, if these shortcomings are not corrected within national implementation regimes, the result may be that the ‘ADR stairway’ will contain holes that consumers may fall through during their climb towards justice. Résumé: C’est pour offrir aux consommateurs un nouvel acces, a leur avantage, a la justice, que la Commission europeenne a adopte la nouvelle Directive sur le reglement extrajudiciaire des litiges (REL). En ce sens, la Directive REL vise a encourager plus de consommateurs a faire valoir leurs droits et, par consequent, a renforcer la mise en oeuvre du droit de la consommation. Toutefois, pour atteindre les objectifs de la Commission, cette voie d’acces doit egalement pouvoir etre negociee (a savoir etre efficace) et mener reellement a la justice (a savoir etre juste). Cet article s’interroge sur la possibilite, pour le systeme mis en place par la Directive REL, tel qu’il est concu, d’atteindre ces resultats et, par consequent, d’encourager plus de consommateurs a faire valoir leurs droits. Sera prise en consideration l’influence que la Directive REL pourrait eventuellement avoir sur le comportement des consommateurs, compte tenu des reticences que ces derniers pourraient avoir a l’egard de l’efficacite des procedures REL et de l’impartialite des entites REL. On examinera si la Directive REL est plus a meme que les procedures judiciaires d’eliminer ou au moins de diminuer ces reticences. A travers cet article, egalement sur la base d’une analyse du comportement et des considerations des consommateurs face a la REL, seront souleves les points sur lesquels la Directive REL n’est pas en mesure d’offrir une plus grande ou une meilleure reglementation ; en effet, si ces points problematiques ne sont pas corriges dans le cadre de la transposition dans les ordres juridiques nationaux, le resultat pourrait etre que ‘la voie d’acces REL’ contienne des pieges susceptibles d’entraver l’acces des consommateurs a la justice.

The New ADR Directive: Designed to Fail? A Short But Hole-Ridden Stairway to Consumer Justice

The European Commission adopted the new ADR Directive with an aim to create an additional, attractive stairway to consumer justice. As such, the ADR Directive intends to encourage more consumers to invoke their consumer rights and thus strengthen consumer law enforcement. However, in order to realize the Commission’s goals, this stairway must also be able to be negotiated (i.e. it must be effective) and it must actually lead to consumer justice (it must be fair). This paper questions whether the ADR Directive’s regime is appropriately designed to achieve these results and, consequently, to entice more consumers to claim their rights in the future. This assessment is conducted considering the potential impact of the ADR Directive on consumer behaviour, with respect to mitigating their ‘biases’ against the effectiveness of ADR procedures and their perception of fairness of ADR entities. I examine whether the ADR Directive is likely to eliminate or at least diminish such biases more than in the case of judicial procedures. Throughout this paper, based on the analysis of consumer attitudes and beliefs towards ADR, I indicate where the ADR Directive fails to provide more or better regulation, arguing that if these shortcomings are not corrected within national implementation regimes, the result may be that ‘ADR stairway’ will contain holes that consumers may fall through during their climb towards justice.

Is ADR the Superior Mechanism for Consumer Contractual Disputes?—an Assessment of the Incentivizing Effects of the ADR Directive

The European legislator has adopted a Directive on alternative dispute resolution (ADR) which sets out minimum requirements for ADR entities throughout the European Union (EU). From a law and economics point of view, law enforcement is crucial to induce compliance. ADR can be viewed as a means of strengthening consumer law enforcement, leading to compliance at lower costs. Certain conditions, however, have to be fulfilled to exploit the benefits of an ADR mechanism successfully. The goal of this paper is to look into these conditions more specifically and critically assess the ADR Directive in light of these requirements. It is divided into a theoretical section and the analysis of the EU Directive. The main concern results to be the fact that ADR boards with very strong links to traders are allowed under the Directive. When looking at the composition of the bodies, a complicated compromise was enacted that is able to impede the working of such ADR bodies. Given that the Directive aims at minimum harmonization, Member States have the opportunity to provide for a better design in their respective countries responding to this main concern and other critical points identified in the paper.

Private law enforcement through ADR: Wonder drug or snake oil?

If law is to make a difference in the real world, enforcement is crucial. Consequently, enforcement issues have always loomed large in European law. In light of this tradition, the approach of Directive 2013/11/EU on Alternative Dispute Resolution for Consumer Disputes is not without problems. After all, ADR was thought to be an "alternative" to dispute resolution in court, precisely because it did not aim for strict application of the law. The present article analyses the framework set up by the Directive and puts it to the test in the light of law enforcement: will ADR help to improve the enforcement of consumer law in Europe or will it rather dilute the incentives generated by the substantive law? This paper concludes that ADR is an inadequate means of law enforcement.

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.

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.

Integrate or Separate - Institutional Design for the Enforcement of Competition Law and Consumer Law

Over the past years several EU Member States decided to integrate their competition authorities with their consumer protection agencies. Most recently, the Netherlands Authority for Consumers and Markets (ACM) has merged the Netherlands Competition Authority (NMa) with the Dutch Consumer Authority (CA) and the Netherlands Independent Post and Telecommunications Authority (OPTA) as from 1st April 2013. On the contrary, some other Member States separate the enforcement of competition law and consumer law. The United Kingdom will abolish the Office of Fair Trading (OFT) and merge its competition and national enforcement functions with the also abolished Competition Commission to form a new Competition and Markets Authority (CMA). The OFT’s consumer law enforcement roles are handed to the National Trading Standards Board which will coordinate consumer law enforcement with local and regional government’s trading standards departments. The CMA will retain consumer enforcement powers for some purposes and have responsibility for national oversight of the effective functioning of markets. These institutional changes are the results of political decisions, based mainly on budgetary concerns. National governments justified these institutional mergers by arguing that consolidated agencies can increase the efficiency and effectiveness of competition oversight and market regulation, enhance the importance of consumer and competition affairs in society, ensure corporate responsibility with regard to consumer interests and streamline administration. Similarly, the separation of institutions was justified by the reduction of complexity in the enforcement landscape, strengthening the effectiveness of law enforcement and achieving more cost-efficient delivery of consumer advice, representation and enforcement. These institutional and procedural changes seem to be experimental rather than programmatic and are instituted without investigating their impact on law enforcement. This paper discusses three different institutional models for separating or integrating the public enforcement of competition law and consumer protection and analyses the synergies and the drawbacks emerging from allocating enforcement powers in one or two public agencies. The aim of the paper is to assess how the allocation of enforcement powers affect law enforcement and map those normative criteria that have to be assessed when the allocation of regulatory powers is decided on. The paper analyses the likely consequences of a certain institutional arrangement for procedural norms such as the proportionality of remedies and the time of intervention and for institutional performance norms such as expertise, administrative efficiency, independence, consumer participation and accountability. This analysis is conducted against the backdrop of the regulatory state in EU law and policy and it extends to examine the impact of EU law and policy on the Member States’ institutional design as well as the EU’s constraining effects on institutional path dependence.