Flexible implementation and the Consumer Rights Directive

Abstract

This report shows that despite the full harmonisation approach promoted by the European Commission and adopted by the EU legislature in the case of the Consumer Rights Directive, the member states still have some opportunities to adjust European norms to the national reality. Nevertheless, our sample of four EU countries – Czechia, Germany, Ireland, and the Netherlands – documents that the member states do not use the space for discretion offered by the Directive’s substantive provisions to a great extent. Our analysis shows that the four member states tried to preserve their existing consumer protection regimes to the greatest possible extent. They used discretion in such a way that enabled retaining existing domestic laws and practices. In contrast to largely harmonized substantive CRD norms, the enforcement rests largely in member states powers. The means of putting the consumer contract law into practice shows some overlaps, but their use varies largely. The member states differ, importantly, in the overall emphasis on private or public enforcement. More specific differences include lists of remedies, persons who can bring the complaints, bodies dealing with the complaints or in the range and severity of penalties. The availability of class actions and ADR, but especially their use, differs wildly.