Date: 2010
Type: Book
Cases, materials and text on consumer law
Oxford/Portland, Hart Publishing, 2010
MICKLITZ, Hans-Wolfgang, STUYCK, Jules, TERRYN, Evelyne (editor/s), MICKLITZ, Hans-Wolfgang, STUYCK, Jules, TERRYN, Evelyne, Cases, materials and text on consumer law, Oxford/Portland, Hart Publishing, 2010
- https://hdl.handle.net/1814/13750
Retrieved from Cadmus, EUI Research Repository
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
Cadmus permanent link: https://hdl.handle.net/1814/13750
ISBN: 9781841137490
Publisher: Hart Publishing
