Cases, Materials and Text on Consumer Law
Title: Cases, Materials and Text on Consumer Law
Citation: Oxford/Portland, Hart, 2010
The objective of this casebook, like others in the Ius Commune Series, is to help uncover common roots, notwithstanding differences in approach, of the European legal systems, with a view to strengthening the common legal heritage of Europe. It covers the big legal families in the EU and contains judgments from the supreme courts and other courts of the Member States. In view of the importance of EC legislation (eg harmonisation directives and regulations) in this field, the consumer law casebook contains much material derived from Community law, such as extracts from directives (eg on unfair contract terms, distance selling, doorstep selling, product liability, unfair commercial pratices etc) and judgments of the ECJ and national court decisions. Furthermore, attention is paid to the way in which, when interpreting EC directives in the consumer field, the ECJ refers to concepts common to the legal systems of the Member States and how the courts of the Member States incorporate the concepts found in the directives (as interpreted by the ECJ) in their legal systems. The casebook also compares harmonised and pre-harmonised law, especially in the case law of the Member States. It concentrates on private law in the field of consumer protection but also addresses topics, in particular in the field of enforcement, that are primarily a matter of public law.
Table of Contents:
Table of Contents Chapter one - Setting the Scene (main author: Jules Stuyck) I. CONSUMER LAW I.A Introduction I.B The Consumer and Competition Law I.C The Consumer in the Internal Market I.D The Paradigm of the Confident Consumer I.E Consumer Protection and Harmonization at the EC Level: Review of the Consumer Acquis II. WHO IS THE CONSUMER? II.A The Notion of Consumer II.B Middlemen II.D Vulnerable Parties II.F Mixed Situations III. BASIC MODELS OF CONSUMER LAW IN THE EU III.A Introduction III.B Codification III.C Consumer Ombudsman III.D Collective Agreements IV. LEGAL TECHNIQUES OF CONSUMER PROTECTION AT THE COMMUNITY LEVEL V. CONSUMERS, HORIZONTAL EFFECT AND STATE LIABILITY FOR INFRINGEMENT OF EUROPEAN CONSUMER LAW Chapter two - Commercial Practices and Advertising (main authors: Hans-W. Micklitz and Geraint Howells) I. INTRODUCTION I.A The Development of EC Law on Unfair Commercial Practices I.B Regulation and Self-Regulation II. SCOPE OF EUROPEAN UNFAIR COMMERCIAL PRACTICES LAW II.A Commercial Practices and Free Speech II.B Protection of Interests other than the Economic Interests of Consumers II.B.1 Health and Safety in EC Law on Unfair Commercial Practices II.B.2 Foodstuffs, Pharmaceuticals, Cosmetics, Tobacco and Alcohol Regulation II.B.3 Gender Discrimination in Advertising III. THE NOTION OF FAIRNESS III.A The Structure of the Control Concept III.B Fairness, Professional Diligence and Material Distortion of Consumers III.B.1 National Notions of Fairness III.B.2 Is there an Obligation to Introduce the Concept of Fairness tel quel? III.B.3 The Role and Function of the General Clause-Safety Net? III.C Fairness, Taste, Decency and Culture: How are they Interrelated? III.D The average Consumer and Particularly Vulnerable Groups IV. MISLEADING PRACTICES IV.A Definition IV.B Untruthfulness/Deceptiveness Condition IV.C The Materiality Condition IV.D What Information? V. MISLEADING OMISSION V.A A European Duty to Disclose Information? V.B Member States' Approaches to the Disclosure of Information V.C The Invitation to Purchase V.D Established Information Requirements, Article 7(5) VI. LANGUAGE IN COMMERCIAL PRACTICES VII. COMPARATIVE ADVERTISING VIII. AGGRESSIVE PRACTICES AND SALES PROMOTION VIII.A Aggression VIII.B Harassment VIII.B.1 Means of Communication VIII.B.2 Place: Direct Selling VIII.C Coercion VIII.D Undue Influence VIII.D.1 The Definition VIII.D.2 Free Gifts in the Case-Law of the ECJ VIII.D.3 National Law on Sales Promotions VIII.E National Sales Promotion Law and the Scope of UCPD Chapter Three - Consumer Contract Law (main authors: Sergio Cámara Lapuente and Evelyne Terryn) I. CONSUMER PROTECTION AND THE EVOLUTION OF EUROPEAN CONTRACT LAW I.A The Emerging EU Contract Law: Towards a 'Common Reference' I.A.1 European Commission Communications 2001–03 I.A.2 Academic Projects as Input for Future Harmonisation I.A.3 The Common Frame of Reference (‘CFR’), 2007–09 I.A.4 The European Civil Code in the Background I.B Consumer Protection Directives I.B.1 A Fragmented Approach I.B.2 Towards a New Comprehensive Approach: Green Paper of 2001 and Communication of 2004 (Revision of the Acquis) I.B.3 The Green Paper on the Review of the Consumer Acquis and the Proposal for a Directive on Consumer Rights I.B.4 A ‘European Consumer Code' in the Background? I.C Co-ordination between European Contract Law and European Consumer Law? Questions and Trends II. FORMATION OF CONTRACT II.A Introduction: Non-Negotiated Contracts with Consumers II.B Offer II.B.1 The Concept of and Requirements for an Offer (Objective' Elements) II.B.2 Intention to be Bound and Consumer Directives which Require Clarification of a Party's Intention II.B.3 'Subjective' Elements of an Offer II.B.3.a The addressee: offers to the public, to undetermined consumers and to determined consumers II.B.3.b The role of the prior activity of the consumer (passive/active) II.B.4 Formal Requirements/Restrictions of Offers II.B.5 The Binding Character of an Offer (and of an Advertisement?): Cases Involving Unwilling Sellers II.B.5.a Limits on the binding character of public statements (legal and contractual limits) II.B.5.b Is the trader/offeror bound by mistakes in the declaration and by typing errors? II.B.5.c Controversial types of ‘offers’ (i) Advertisements (ii) Display of goods for sale in a shop (supermarket, shop-window, shelves in a self-service shop, etc) (iii) Auctions (iv) Webpages (v) Automatic distributors/machines (vi) Tacit offers (offers by conduct) II.B.6 Lapse of an Offer II.B.7 Revocability of an Offer II.C Acceptance II.C.1 Requirements for Express Acceptance II.C.2 Requirements for Implied Acceptance: Silence, Inertia Selling and Unwilling Buyers II.C.3 Correction of Input Errors II.C.4 Period of Time for Prior Reflection ('dèlai de réflection préalable') II.C.5 Confirmation of the Acceptance (Acknowledgement of Receipt) II.C.6 Moment and Place of Conclusion of the Contract III. INFORMATION DUTIES III.A Introduction III.B General Information Duties III.B.1 Introduction III.B.2 Based on General Contract Law III.B.2.a Existence and legal basis III.B.2.b Scope III.B.3 Based on Explicit Statutory Provisions III.B.3.a National law III.B.3.b EC law III.C Specific Information Duties III.D Remedies III.D.1 Introduction III.D.2 General Private Law Remedies III.D.2.a Avoidance III.D.2.b Specific performance III.D.2.c Damages Chapter Four - Right of Withdrawal and Standard Terms (main authors: Peter Rott and Evelyne Terryn) I. RIGHT OF WITHDRAWAL I.A Rationale I.B Situations in which the Consumer Enjoys a Right of Withdrawal I.B.1 Overview I.B.2 Objective Situations I.C Regulation and Harmonisation of the Right of Withdrawal I.C.1 Introduction I.C.2 Notification of Withdrawal I.C.2.a Introduction I.C.2.b Content I.C.3 Prolongation of the Right of Withdrawal I.C.4 Performance during the Period for Withdrawal I.C.5 Exercise of the Right of Withdrawal I.C.6 Effects of Withdrawal I.C.6.a General I.C.6.b Compensation for normal use I.C.7 Linked Contracts II. STANDARD TERMS II.A Incorporation of Standard Terms II.A.1 General requirements II.A.2 Standard Terms in a Foreign Language II.A.3 Surprising of Particularly Onerous Clauses II.B Control of Standard Terms in Individual Litigation II.B.1 Standard Terms vs Individually Negotiated Terms II.B.2 The Unfairness Test II.B.3 Blacklists, Greylists, Indicative Lists II.B.4 Core Terms II.B.4.a Control of price-related terms II.B.4.b Insurance contracts II.B.5 Role fo the ECJ II.B.6 Legal Consequences of Unfairness II.B.6.a Ex officio control II.B.6.b Partly unfair terms Chapter Five - Sale of Goods (main authors: Christian Twigg-Flesner and Elise Poillot) I. EU LEGISLATION ON CONSUMER SALES II. CONTRACTS OF SALE II.A Defining 'Sale' II.B Broadening the Definition; Goods to be Manufactured of Produced II.C Contracts involving the Installation of Goods III. WHAT ARE ‘CONSUMER GOODS’? III.A Second-Hand Goods III.B Software and other Digital Content IV. GOODS MUST BE IN CONFORMITY WITH THE CONTRACT IV.A No 'Conformity' Requirement in English Law IV.A.1 Correspondence with Description IV.A.2 Quality and Fitness for Particular Purpose IV.B Lowering Expectations IV.C Disclosure of Faults V. BURDEN OF PROOF VI. PERSONS LIABLE VII. REMEDIES UNDER DIRECTIVE 99/44/EC VII.A Repair and Replacement VII.A.1 Proportionality as between Remedies VII.A.2 Replacement and Second-Hand Goods VII.A.3 Allowance for Use Had of the Goods VII.A.4 Consumer Arranges Repair by a Third Party VII.B Price Reduction and Rescission VIII. FURTHER REMEDIES: TERMINATION OF THE CONTRACT AND CLAIMS FOR DAMAGES VIII.A Damages VIII.B Termination IX. CONSUMER GUARANTEES Chapter Six - Financial Services (main authors: Veerle Colaert and Tom Van Dyck) I. FINANCIAL SERVICES AND CONSUMER PROTECTION I.A The Traditional Information Paradigm versus New Means of Consumer Protection I.B Access to Financial Services I.C Structure of the Chapter II. CONSUMER PROTECTION IN THE FIELD OF CREDIT SERVICES II.A Introduction II.B Access to Credit Services II.C Who is Protected by the Rules II.D Consumer Protection Mechanisms II.D.1 Information Requirements II.D.1.a The harmonisation of the information requirements under the Consumer Credit Directive II.D.1.b Formalities at the core of the consumer credit protection II.D.2 Other Substantive Protection Rules, Including 'Responsible Lending' III. CONSUMER PROTECTION IN THE FIELD OF INVESTMENT SERVICES III.A Introduction III.B Access to Investment Services III.C Who is Protected by the Rules III.C.1 The Prospectus Directive III.C.2 The UCITS Directive III.C.3 MIFID III.D Consumer Protection Mechanisms III.D.1 The Prospectus Directive III.D.2 The UCITS Directive III.D.3 MIFID III.D.3.a Duty of care III.D.4.b Conflict-of-interest situations III.D.3.c Information requirements (i) Quality of the information (ii) Minimum information and presentation of the information (iii) Harmonised information requirements and non-harmonised rules of civil procedure (i) Investment advice and portfolio management—suitability test (ii) Other investment services—Appropriateness test (iii) Insufficient information—consequences III.D.3.e Best execution IV. CONSUMER PROTECTION IN THE FIELD OF BANKING AND PAYMENT SERVICES IV.A Introduction IV.B Access to Banking and Payment Services IV.C The Consumer of Banking and Payment Services IV.D Consumer Protection Mechanisms IV.D.1 Information Requirements IV.D.2 Other Substantive Protection Rules Chapter Seven - Product Liability (main authors: Geraint Howells and Jean-Sébastien Borghetti) I. THE ORIGINS AND JUSTIFICATIONS OF HARMONISATION II. THE CONTINUED EXISTENCE OF NATIONAL PRODUCT LIABILITY REGIMES III. PRODUCTS III.A Blood and Body Parts III.B Intellectual Products IV. LIABLE PERSONS IV.A Channeling Liability to Producers IV.B Liability of Non-Producers IV.B.1 Liability of Importers IV.B.2 Liability of Franchisors and Own-Branders IV.B.3 Liability of Suppliers V. SUPPLY/PUTTING INTO CIRCULATION VI. DEFECT VI.A Distinction between Manufacturing adn Design Defects VI.B Consumer Expectations and Risk: Utility VI.C Fault VI.D Inherent Risks VI.E Warnings and Instructions VI.F Location of Sale VI.G Age of User VI.H Marketing VI.I Compliance with Standards VI.J Defences VI.J.1 General VI.J.2 Development Risks VII. DAMAGES VII.A Heads of Damage VII.B Maximum Liability VII.C €500 Threshold Chapater Eight - Litigation, Redress and Enforcement (main authors: Hans-W. Micklitz, Jules Stuyck, Evelyne Terryn and Lubos Tichý) I. ADMINISTRATIVE ENFORCEMENT AND SELF-REGULATION II. ‘TRADITIONAL’ INDIVIDUAL REDRESS III. ARBITRATION AND MEDIATION III.A Introduction III.B Definitions and Terminology III.C Regulation of ADR III.C.1 Introduction III.C.2 General EU Initiatives III.C.3 Consumer Specific EU Initiatives III.D Variety and Availability III.E Arbitration Clauses in Consumer Contracts IV. COLLECTIVE REDRESS IV.A Introduction IV.B Actions for Injunction IV.C Actions for Damages IV.C.1 Different Approaches in the Member States IV.C.2 Recent EC Initiatives on Collective Actions for Damages V. CRIMINAL LAW SANCTIONS VI. STATE LIABILITY VII. INDIVIDUAL CROSS-BORDER ENFORCEMENT VII.A Introduction VII.B Jurisdiction VII.B.1 Scope of Application Brussels I Regulation VII.B.2 Specific Rules for Consumer Contracts VII.B.3 The Concept of Consumer Contract VII.B.4 The Concept of Active Trader VII.B.5 Jurisdiction Clauses VII.B.6 Applicable Law VII.B.6.a Contracts—the Rome Convention and the Rome I Regulation VII.B.6.b Contracts—secondary Community Law VII.B.6.c Torts and other non-contractual obligations VII.C Collective Cross-Border Enforcement via Actions for Injuctions VII.D Administrative Co-operation