Tamas Dezso Czigler Ghent University 21/05/2013 HOW TO DEVELOP EU CONSUMER LAW? A snapshot of weaknesses and basic points of a possible future reform

ABOUT THE TOPIC  Worked for major law firms like Baker & McKenzie - need for simplified rules, fragmentation costs money  Made the peer review of an article written by Prof. Micklitz (EUI Florence) - Social Justice and Access Justice in EU Private Law - EU consumer law moves into a fair system?  Stayed at the University of Aberdeen – was asked to move into Scottish private International law instead - Because topic is so „evident”?  Stayed in the US at Columbia and Fordham Universities: - Our basic „values” can be questioned  European Law Institute (Why not? Let’s create another institute... (R. Zimmermann) - Evaluation of existing sources or creating useless new principles?

THE MAIN POINTS TO DEVELOP  FRAGMENTATION - Substantive law and PIL must be checked together!  SYSTEM OF REMEDIES - Are we sure we are fair?  Private International law aspects - Rome I and the practice  Why not try other institutions instead? - European consumer office, small claims court, class action, effective procedural rules?

FRAGMENTATIONLevels  International - Convention on the International Sale of Goods (CISG) - Special conventions (eg. contracts of carriage)  EU level: numerous rules - Directives - Regulations Essential need for restructuring consumer law  National provisions, e.g. in Belgium - Act on Unfair Commercial Practices and Consumer Protection (AMPC) (2010) - Act on Consumer Credit - Timeshare Act - Civil Code

FRAGMENTATION Substantive Law – time to unify - Council Directive 86/653/EEC on to self-employed commercial agents - Council Directive 93/7/EEC on the return of unlawfully removed cultural objects - Directive 96/71/EC on the posting of workers - Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea - Council Directive 85/374/EEC on liability for defective products - Council Directive 85/577/EEC on contracts negotiated away from business premises - Council Directive 87/102/EEC on consumer credits - Council Directive 93/13/EEC on unfair terms in consumer contracts - Directive 97/7/EC on contracts. - Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees - Directive 2000/31/EC on electronic commerce - Directive 2008/122/EC on timeshare, long-term holiday product, resale and exchange contracts (new timeshare directive) - Directive 2005/29/EC on unfair business-to-consumer commercial practices

FRAGMENTATION Substantive Law  Directive 2011/83/EU on consumer rights Sevenfour Firstly: Seven directives Proposal: four directives: - Directive on unfair terms in consumer contracts - Directive on distance contracts - Directive on consumer sale of goods - Directive on consumer contracts negotiated away from business premises. only two Later: consumer sales and unfair terms were cut out, only two directives were built in (+ a few general rules for consumer contracts): - Directive on distance contracts - Directive on consumer contracts negotiated away from business premises  Proposal for a regulation on a common European sales law [COM (2011) 0635 final] - optional tool - parties may choose its application - general rules of contracting !!!! MY SUGGESTION: LET’S BUILD THE PRESENT RULES INTO ONE SOLE DIRECTIVE !!!!

FRAGMENTATION Private international law  FIRST PROBLEM - Rome I regulation AND substantive law directives containing PIL provisions: chaos  SECOND PROBLEM - CESL: sui generis choice !!!! MY SUGGESTIONS: 1) LET’S BUILD ALL THE PRESENT RULES INTO ROME I REGULATION AND 2) CREATE THE BACKGROUND OF CESL IN ROME I + ( 3) optional (jurisdiction): CLEAR THE CONNECTION WITH ARBITRATION (SEE WEST TANKERS) )

SYSTEM OF REMEDIES Are we fair enough?  EU - Repair, price reduction – are they reasonable and useful? - Canceling – withdrawal periods – is it reasonable? - Fixed time for warranty  US: - No general, fixed time for warranties - Repair, price reduction generally not applied - Injunction (N/A): court order commanding or preventing an action: Exceptional: if no plain, adequate, and complete remedy is available and danger of an irreparable injury - English Case: Lumley-Wagner case – negativ obl. - Canceling: in case of substantial (essential) breach - Magnusson - Moss Warranty Act (for consumers) MY SUGGESTION: THINK THROUGH THE COMMON LAW APPROACH

PRIVATE INTERNATIONAL LAW Art 6 Rome I regulation cannot be followed by the practice C ross border sales: - In case the business is present in the consumer’s country latter law has to be applied eg. I buy an internet stick in Germany, but Hungarian rules apply - In case the parties choose a different law, the choice may not have a negative effect at the consumer MY SUGGESTIONS 1)UNREALISTIC RULES, WE NEED TO THINK THEM OVER 2) NEED ROME 0 AS IT WAS SUGGESTED BY MPI HAMBURG

NEED FOR NEW INSTITUTIONS Suggestions  EUROPEAN CONSUMER OFFICE - at least with the powers of the US Federal Trade Commission (FTC) - would be better: with power to decide in cross-border consumer law issues - national offices are useless – eg. book from Spain – no money, no book, where to go?  EUROPEAN SMALL CLAIMS COURT  PUNITIVE DAMAGES?  CLASS ACTIONS (COLLECTIVE REDRESS) - EU level: „Commission had not put forward convincing evidence that action was needed at EU level to ensure that victims of unlawful behaviour were compensated” - Belgium: TEST Achats proposed it

Thank you for your attention!