Directive 2011/83/EU on consumer rights: a new approach to European consumer law?

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artiClES/artiKEl

Zeitschrift für Europäisches Unternehmens- und Verbraucherrecht Journal of European Consumer and Market law (2012) 2:67 - 80

Summary

Während sich der überwiegende teil der europäischen wis-senschaftlichen literatur derzeit intensiv mit dem Gemein-samen Europäischen Kaufrecht (GEKr) beschäftigt, gerät die ebenfalls kürzlich in Kraft getretene Verbraucherrechte-rl 2011/83/EU daneben fast in den Hintergrund – eine rolle, die ihr gewiss nicht gerecht wird. ausgehend von einem kurzen historischen abriss bisheriger europäischer Verbraucherschutzpolitik hat es sich dieser Beitrag daher zur aufgabe gemacht, die sich aus der richtlinie ergebenden Neuerungen zu analysieren, um so festzustellen, inwiefern sie den veränderten anforderungen an das europäische Ver-braucherrecht gerecht werden.

dabei wird zunächst der Begriff des Verbrauchers erör-tert. Die Frage, wie dieser genau zu definieren ist, in con-creto, ob am bisherigen eher engen Begriffsverständnis fest gehalten oder dieses entsprechend einigen randberei-chen des Verbraucherschutzes dahingehend erweitert wer-den soll, dass es sogar zu einer neuen Begriffswahl – nämlich der des „Nutzers“ – kommen soll, kann jedoch beim derzei-tigen Stand der Entwicklungen noch nicht eindeutig beant-wortet werden.

daneben bietet das von der aktuellen Verbraucherrechte-rl aufgegriffene Konzept der Vollharmonisierung erneut diskussionsstoff, wobei schon der Begriff als solcher nicht ganz klar ist, denn auch das Bemühen um strikte Vollharmoni-

Directive 2011/83/EU on consumer rights: a new approach to European consumer law?

Klaus Tonner · Kathleen Fangerow

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Prof. dr. jur. Klaus tonner, University of rostock. Law Faculty, Möllner Straße 10, 18109 rostock, Germany E-Mail: <[email protected]>

Kathleen Fangerow, Research Fellow, University of Rostock. Law Faculty, Möllner Straße 10, 18109 Rostock, Germany E-Mail: <[email protected]>

sierung kann im Ergebnis nicht zu einer vollständigen Verein-heitlichung des entsprechenden rechtsgebietes in allen Mit-gliedstaaten führen. Vielmehr wird um den harmonisierten Bereich herum immer auch weiterhin raum für autonomes Recht der einzelnen Mitgliedstaaten bleiben – ein Fakt, der nach dem derzeitigen Stand der europäischen integration durchaus zu begrüßen ist. der zwischen Mitgliedstaaten und EU bestehenden „geteilten Verantwortung“ kann insofern am besten mit dem Konzept der zielgerichteten („targeted“) Voll-harmonisierung begegnet werden, dessen genaue ausgestal-tung unbedingt im rahmen der zukünftigen Verbrau cher-politischen Strategie 2014–2020 empfohlen wird.

Da die letztendlich erlassene Fassung der Verbraucher-rechte-rl sowohl die bisherige Verbrauchsgüterkauf-rl sowie die rl über missbräuchliche Klauseln in Verbrau-cherverträgen unangetastet lässt, befasst sich dieser Beitrag weiterhin mit der Frage, ob dadurch entstehende Lücken eventuell durch das anfangs erwähnte GEKr geschlossen werden könnten. als „optionales“ instrument soll dieses jedoch in erster linie attraktiv für Unternehmen sein, von deren akzeptanz als gemeinsame rechtsgrundlage der Erfolg des GEKr maßgeblich abhängt. Eine zukünftige Entwicklung des GEKr zu Gunsten der Belange des Ver-brauchers und damit notwendigerweise zu lasten der Unter-nehmen wird daher nicht zu erwarten sein. der Verweis auf „optionales“ recht, um bestehende lücken im Bereich des Verbraucherschutzes zu schließen, kann daher nur deutlich abgelehnt werden, braucht der Verbraucher als schwächere Vertragspartei doch den Schutz durch unabdingbares recht.

der Beitrag endet schließlich mit einigen Empfehlungen an die zukünftige Verbraucherpolitische Strategie 2014–2020, um die von der Verbraucherrechte-rl nicht nur marginalen bisher nicht geklärten Fragen einer eindeutigen Antwort im Sinne des Verbrauchers zuzuführen.

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68 Klaus Tonner/Kathleen Fangerow

I. Introduction

on 12.12.2011 the directive on Consumer rights (hereaf-ter: Crd) came into force,1 which has to be transposed by member states to national law until 13.12.2013. on one side, the new directive is a milestone in the development of European consumer law. it is an expression of a more systematic approach of the European legislator to regulate consumer law, and – more important – it earmarks the step from minimum standard harmonisation to full harmonisa-tion. on the other side, it is more than doubtful, whether the directive meets the challenges for consumer law stemming from the economic and technical developments of the last years.

after some short remarks about the historical background of European consumer protection policy and its relation to national consumer protection policy (ii.) and a short de-scription of the contents of the directive (iii.) we will pick up some of the problems the directive does not address. the first is the term “consumer”. With respect to new develop-ments outside the core materials of consumer law it is not sufficient in our view to maintain the traditional term stem-ming from the already existing Consumer directives (iV.). We are less critical towards the compromise the directive chooses in regard to minimum and full harmonisation, com-monly referred to as targeted full harmonisation2, which seems to bring the debate, whether minimum standard or full harmonisation makes more sense, to an end (V.). Be-cause the proposal of the directive failed to review also the Sales of Consumer Goods directive and the Unfair Contract terms directive, we will ask the question whether these gaps can be closed by the Common European Sales law (hereaf-ter: CESl),3 the proposal of which was published nearly at the same time as the adoption of the Crd (Vi.). it is not the purpose of this contribution to discuss the CESL at length; this has been done at length by others. We would like to fo-cus on the Cdr and the problems left by it, and therefore a topic which has not found half the attention in the literature.

our conclusion will be that it is necessary to keep a sepa-rate consumer law also in the future. in our opinion con-sumer law cannot be integrated into an instrument like the

1 directive 2011/83/EU of the European Parliament and of the Council of 25.10.2011 on consumer rights, amending Council directive 93/13/EEC and directive 1999/44/EC of the European Parliament and of the Council and repealing Council directive 85/577/EEC and directive 97/7/EC of the European Parliament and of the Council, oJ 2011 l 304/64. For the proposal [CoM (2008) 614] see Hondius, the Pro-posal for a directive on Consumer rights: the Emperor’s New Clo-thes?, ERPL 2011, 163; Tonner/Tamm, der Vorschlag für eine richtli-nie über Verbraucherrechte und seine auswirkungen auf das nationale Verbraucherrecht, JZ 2009, 277 (in German).2 Reich, Von der Minimal- zur Voll- zur „Halbharmonisierung“, ZEuP 2010, 7 ff, uses the term of “Halbharmonisierung.”3 CoM (2011) 635.

CESl, this is to say an optional instrument including the traditional consumer acquis only, and that this consumer law must be based on a broader concept of that what is now-adays referred to as a consumer (Vii).

II. A short review of 40 years of European consumer protection

1. The first three decades: 1970–2000

the beginning of European consumer law was in the early 1970s, when the ideas of US american consumer protection were inherited by the then European Economic Community (EEC). at the same time member states started to develop their own consumer protection programs and to adopt rele-vant legislation. The French loi Royer as an early model of consumer orientated unfair competition law4 may serve as an example, just as the French withdrawal rights.5 in 1976 Germany adopted the Unfair Contract terms act (aGB-Gesetz)6 and the UK contributed the Consumer Credit act7. Member states and not the European legislator were active.

at the beginning of the 1980s the Commission felt the need to harmonise the only recently adopted national con-sumer protection legislation. the European legislator had not been able to follow these needs before the internal mar-ket principle was established by the Single European act in 1986, the first revision of the Rome Treaty.8 this act added Art 100a EEC (now Art 114 TFEU), which allowed major-ity voting in the Council for instruments affecting the estab-lishment of the internal market. From now on consumer protection directives were adopted in short intervals start-ing with the doorstep Selling directive 85/577/EEC9, fol-lowed by the Consumer Credit directive 87/102/EEC10, the Package tours directive 90/314/EEC11, the Unfair Contract

4 loi d’orientation de commerce et d’artisanat of 27.12.1973.5 a doorstep selling cancellation right came into force already in 1972, Loi no 72–1137 of 22.12.1972; the right to withdraw from a distant selling contract goes back to an act from 1988, loi no 88–21 of 06.01.1988.6 Gesetz zur regelung des rechts der allgemeinen Geschäftsbedin-gungen (aGB-Gesetz, Standard terms act) of 09.12.1976, BGBl i 3317.7 Consumer Credit act 1974, ch 39.8 oJ 1987 l 169/1.9 Council directive 85/577/EEC of 20.12.1985 to protect the consumer in respect of contracts negotiated away from business premises, oJ 1985 l 372/31.10 Council directive 87/102/EEC of 22.12.1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, oJ 1987 l 42/48.11 Council directive 90/314/EEC of 13.06.1990 on package travel, package holidays and package tours, oJ 1990 l 158/59.

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69Directive 2011/83/EU on consumer rights

terms directive 93/13/EEC12, the distance Selling direc-tive 97/7/EC13 and finally the Consumer Sales 1999/44/EC14, to name only those relevant for consumer contract law. all these directives are subject to the principle of minimum standard harmonisation. this led only to an approximation of the national laws and could be regarded from a mere in-ternal market perspective only as “second best”. But obvi-ously member states were not prepared in the 1980s and 1990s to fully give up their autonomy with regard to legal instruments in the field of consumer protection.

From the very beginning of European consumer (protec-tion) policy there was a tension between consumer protec-tion policy and consumer policy. the approach chosen by the member states in the 1970s predominantly was welfare state orientated, whereas the European approach from the beginning was linked with internal market policy. it was al-ready in 1987, that consumer policy was called a mere “by-product” of internal market policy.15 later, it was – and still is – the concept of the “confident consumer” which under-lies the EU strategies on consumer policy:16 the responsible consumer shall be enabled to play his role in the internal market. Without wanting to give a full substantiation here, we regard that the consumer is the weaker party for struc-tural reasons, who needs protection by legal instruments.17

2. a new approach in a new century

it was no other than consequent that the Commission addressed the full harmonisation principle after the adoption of the core Directives in the field of consumer contract law. This was expressed the first time in the Consumer Policy Strategy 2002–200618, but more clearly and more concrete

12 Council directive 93/13/EEC of 05.04.1993 on unfair terms in con-sumer contracts, oJ 1993 l 95/29. 13 directive 97/7/EC of the European Parliament and of the Council of 20.05.1997 on the protection of consumers in respect of distance con-tracts – Statement by the Council and the Parliament re article 6 (1) – Statement by the Commission re Article 3 (1), first indent, OJ 1997 l 144/19.14 directive 1999/44/EC of the European Parliament and of the Coun-cil of 25.05.1999 on certain aspects of the sale of consumer goods and associated guarantees, oJ 1999 l 171/12.15 Bourgoignie, in Bourgoignie/trubek, Consumer law, common mar-kets and federalism in Europe and the United States (1987) 200.16 Critically to this term Wilhelmsson, The abuse of the “confident con-sumer” as justification for EC consumer law, JCP 2004, 317.17 Micklitz, the targeted full harmonization approach: looking behind the curtain, in Howells/Schulze, Modernising and harmonizing consu-mer contract law (2011) 47 ff and 83; Tamm, Verbraucherschutzrecht – Europäisierung und Materialisierung des deutschen Zivilrechts und die Herausbildung eines Verbraucherschutzprinzips (2011) 62 ff and 157 ff (in German); Tonner, Europäisches und globales Verbraucher-schutzrecht, in tamm/tonner (eds) Verbraucherrecht – Beratungs-handbuch (2012) § 4 No 7 und No 9 (in German).18 CoM (2002) 208..

in the following Consumer Policy Strategy 2007–2013.19 Besides the full harmonisation the strategy suggested more coherence for the consumer acquis. it proposed a so called horizontal instrument which should merge the two direc-tives providing for rights to withdraw, this is to say the door-step Selling directive and the distance Selling directive, the Unfair Contract terms directive and the Sales of Consumer Goods directive to one directive, and vertical instruments, this is to say reviews of the Consumer Credit directive, the timesharing directive and the Package tours directive.

the full harmonisation principle was subject to heavy criticism by member states20 and academic writers as well21, because it bore the danger of leading to a reduction of the consumer protection standard in those member states with a high standard. the European Parliament welcomed the full harmonisation principle but at the same time argued against any reduction of consumer protection in member states.22

Before the approval of the Consumer Policy Strategy 2007–2013 the Commission had already started three at-tempts to fully harmonise, namely in the distance Market-ing of Financial Services Directive 2002/65/EC23, the time-sharing directive 2008/122/EC24, and – most important – the Consumer Credit directive 2008/48/EC25. However, the cornerstone of the new approach is the now adopted Con-sumer rights directive. Beyond the traditional directives, which were considered in the Strategy 2007–2013, also the Unfair Commercial Practices directive 2005/29/EC adopt-ed in 200526 provides for full harmonisation. Following the

19 CoM (2007) 99.20 See the then German Minister of Justice Zypries, der Vorschlag für eine richtlinie über Verbraucherrechte, ZEuP 2009, 225 (in German).21 Micklitz/Reich, the Commission proposal for a directive on con-sumer rights, CMLRev 2009, 471; Rott/Terryn, the proposal for a Directive on consumer rights: no single set of rules, ZEuP 2009, 456; Wilhelmsson, Full harmonisation of consumer law?, ZEuP 2008, 225; Tonner/Tamm, JZ 2009, 277 (in German).22 resolution of 20 May 2008 to the Consumer Policy Strategy 2007–2013, a6-0155/2008.23 directive 2002/65/EC of the European Parliament and of the Coun-cil of 23.09.2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and directives 97/7/EC and 98/27/EC, oJ 2002 l 271/16.24 directive 2008/122/EC of the European Parliament and of the Coun-cil of 14.01.2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts, oJ 2009 l 33/10.25 directive 2008/48/EC of the European Parliament and of the Coun-cil of 23.04.2008 on credit agreements for consumers and repealing Council directive 87/102/EEC, oJ 2008 l 133/66. 26 directive 2005/29/EC of the European Parliament and of the Coun-cil of 11.05.2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council directive 84/450/EEC, directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices directive’), oJ 2005 l 149/22.

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Strategy 2007–2013, the original proposal for a Consumer rights directive aimed to comprise the doorstep Selling directive, the distance Selling directive, the Unfair Con-tract terms directive and the Consumer Sales of Goods di-rective. it was mainly due to the resistance of the Council that this plan was drastically curtailed and now includes only the (former) doorstep Selling and the distance Selling directive, together with some general provisions on pre-contractual information duties.

Whereas the review of the Package tours directive is still on the agenda27 – a proposal is announced for october 2012 –, the existing Unfair Contract terms directive and the Consumer Sales of Goods directive remain in force for the time being.

3. really a new approach?

the Consumer Policy Strategy 2007–2013 addressed only the traditional directives of the 1980s and 1990s. it ignores upstream and downstream issues of consumer protection like unfair commercial practices and consumer redress, the need to regulate many services, in particular services of general interest, and limits itself to the continuation of the information model. this does not mean that the EU is not active in the other fields mentioned – quite the contrary. The EU adopted the Unfair Commercial Practices directive, there are Green papers on consumer redress,28 and many consumer related Regulations in fields like passenger rights or energy law. But the “coherence” approach of the Strategy 2007–2013 fails to integrate such policies in its approach. So it does not really make consumer law coherent. it is backwards orientated as it does not question the contents of the old directives, but takes them more or less as they are and – by switching to the full harmonisation principle – de facto decreases the level of protection.

4. optional Contract law: the CESl

a second issue, which is related to consumer contract law, is the development of a European contract law. in 2001 the Commission published a communication announcing the project of a “Common Frame of Reference” (CFR) which should be used as a “tool box”29 for core terms of contract law throughout the European Union and not at last for the law making process at European level.30 the Commission established a comprehensive network of academics, who

27 For a view into the crystal ball see Tonner, IFTTA law rev 2011, 2 (supplement to rra 2011).28 CoM (2008) 794.29 Schulte-Nölke, EC law on the formation of contracts – from the Common Frame of Reference to the blue button, ERPL 2007, 332.30 CoM (2001) 398.

produced six large volumes and a “Draft Common Frame of Reference” (DCFR) which looks like a Code of contract law.31 The idea was that the DCFR should become an optional instrument which to choose the parties should be free even in B2C contracts. The DCFR was the basis for an expert group founded in May 2010 to draft a “Feasibility Study for a Future Instrument in European Contract Law”32 which was published in May 2011.33 Nearly at the same time the Commission published a Green paper, in which an optional cross-border instrument was suggested.34 Finally in October 2011 the Commission officially adopted a proposal for a “Common European Sales law” (CESl).35 the CESl is designed as an optional cross-border instrument which shall apply to B2C contracts and to B2B contracts as well, if one of the parties is a small or medium sized enterprise. For B2C contracts, the proposal includes the entire relevant con-sumer contract directives including the rules on unfair con-tract clauses and sale of consumer goods as drafted in the original proposal of the Consumer rights directive.

it remains to be awaited whether the proposal of the CESl will face the same opposition as the draft of the Con-sumer rights directive,36 especially in the Council. Never-theless, an examination of the Consumer rights directive would be incomplete without a side glance to the proposal of the CESl, though we cannot discuss the CESl in detail (see below under V.).

III. Content of the new Directive 2011/83/EU

in spite of our critical remarks the Consumer rights direc-tive is nevertheless a milestone in the field of consumer pro-tection, basically because of its three main contents: information requirements, the right of withdrawal and the set up level of harmonisation.

31 Von Bar/Clive/Schulte-Nölke (eds), Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Ref-erence, outline Edition (2009).32 Commission decision 2010/233/EU, oJ 2010 l 105/109.33 A printed version of the Feasibility Study is reproduced in Schulze/Stuyck, towards a European Contract law, (2011) 217 ff.34 COM (2010) 348; see the papers delivered to the SECOLA con-ference „a European optional Contract law – Policy Choices”, on 14.–15.01.2011 in Leuven, published in ERCL 2011 no 2; Tamm, obli-gationenrecht (einschl. ziviles Verbraucherschutzrecht) – die 28. rechts ordnung der EU: Gedanken zur Einführung eines grenzüber-schreitenden B2C-Vertragsrechts, GPR 2010, 281; Tonner, das Grün-buch der Kommission zum Europäischen Vertragsrecht für Verbrau-cher und Unternehmer – Zur rolle des Verbrauchervertragsrechts im europäischen Vertragsrecht, EuZW 2010, 767 (in German).35 CoM (2011) 635.36 See the critical remarks of the German Minister of Justice Leutheus-ser-Schnarrenberger, Europäisches Zivilrecht – nächste Etappen, ZEuP 2011, 451 (in German).

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By creating new information requirements and changing the former right of withdrawal the Consumer rights direc-tive replaces the existing doorstep Selling directive and the distance Selling directive. So both of these directives are formally repealed by art 31 Consumer rights directive.

Art 5 Consumer Rights Directive defines a number of consumer information requirements for contracts other than distance or off-premises contracts such as the main charac-teristics of the goods or services, the identity of the trader or the total price. The list of Art 5 is not exclusive; this is to say that member states may introduce additional information duties, which is – compared to the other contents of the Consumer rights directive – the only exemption of the full harmonisation principle of some relevance. art 6 ff contain consumer information requirements and the right of with-drawal especially for contracts with consumer participation. all in all the number of different information duties which have to be observed in distance or off-premises contracts adds up to twenty – an amount which in its entirety of course results in broad clarifications for consumers, but neverthe-less also tends to be confusing. Next to matters such as the main characteristics of the goods, the identity of the trader, his geographical address and the total price of the goods or services including taxes, the most important examples for the information requirements established in the new direc-tive are the costs of using means of distance communica-tion, the arrangements for payment, delivery and perfor-mance, the right of withdrawal and the existence of relevant codes of conduct. in addition to this general provision, art 7 and art 8 directive imply formal (information) require-ments for off-premises contracts (art 7) and also formal (in-formation) requirements for distance contracts (art 8).

Subsequent to the mentioned information requirements, art 9–16 Consumer rights directive regulate the right of withdrawal. according to art 9 Para 1 the consumer has a period of 14 days to withdraw from a distance or off-prem-ises contract without giving any reason and without incur-ring any costs other than those which are provided in the directive itself. on the one hand supplementary costs of specific types of delivery that the consumer had asked for belong to those. on the other hand also the direct costs of returning the goods to the trader form part of the provided costs unless the trader has agreed to bear them or has failed to inform the consumer that the consumer has to bear them (art 14 Para 1). in the event of withdrawal the directive also obliges the consumer to send the goods back to the trader without undue delay but in any event not later than 14 days from the day on which he has communicated his decision to withdraw from the contract. this obligation shall be enforced by a right of the trader in art 13 Para 3 to withhold the reimbursement until he has received the goods back or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest – a clear

strengthening of the traders’ rights in comparison to the for-mer and now repealed Directives. Finally Art 16 sets up a number of exceptions from the right of withdrawal like ser-vice contracts after the service has been fully performed, the supply of goods which were made to the consumer’s speci-fications or are liable to deteriorate or expire rapidly, the supply of sealed audio or video recordings or computer soft-ware which were unsealed after delivery, contracts conclud-ed at public auctions or the supply of digital content under specific circumstances (for detail regarding the latter see below) to name but a few.

this incorporation of rules regarding digital content is completely new compared to any former European legal act.37 Although recital 19 Directive lacks an explicit classifi-cation as it states that such contracts for digital content for the purpose of this Directive shall neither be classified as sales contracts nor as service contracts, these contracts fall within the scope of the directive. art 2 Para 11 directive defines digital content as “data which are produced and supplied in digital form”, whereas digital content which is supplied on a tangible medium should be considered as goods. For contracts for those not supplied on a tangible medium the consumer also has a right to withdrawal which is excluded, if the performance has begun with the consum-er’s prior express consent and his acknowledgement that he thereby loses his right of withdrawal (art 16 lit m direc-tive). Even if the practical scope of application of such a right of withdrawal for digital content contracts can hardly be seen – isn’t the possibility of immediate download and usage of the data the main reason for purchasing digital con-tent? So why would anybody wait with starting this proce-dure? – the awareness of the need of consumer protection also in regard to digital content has been raised. in this re-gard the directive on consumer rights must be appreciated for having caused such awareness.

despite all that – a detailed regulation of information du-ties and the right of withdrawal – the main importance of the new directive in our opinion can be found in one short sen-tence: art 4 states the level of harmonisation by saying that “member states shall not maintain or introduce, in their na-tional law, provisions diverging from those laid down in this Directive”. this short sentence enforces the principle of full harmonisation, which shall according to recital 7 consider-ably increase legal certainty for both consumers and traders and so guarantee a high common level of consumer protec-tion.

37 the same difference between goods and digital contents appears in the CESL, see below V. For the term of “digital content” see Guibault/Helberger/Loos/Ch. Mak, the regulation of digital Content Contracts in the optional instrument of Contract law, ErPl 2011, 729.

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IV. The definition of “consumer”

as already pointed out this article wants to clarify the requirements that the consumer law now faces because of the new approach. Besides the problems regarding full har-monisation and the relationship between the Consumer rights directive and the CESl the following question arises: Does the previous definition of the term “consumer” still fit with these recent developments or does it need fur-ther adjustments.38

1. General “core” of the term “consumer”

Even though the rules of EU primary law refer to the term “consumer”,39 these rules only mention the term without giv-ing a general definition, explanation or other kind of help to interpret it.40 only by reviewing the different sources of sec-ondary law as well as the relevant European conflict rules a certain “core” definition could be developed: Both Art 15 Para 1 Brussels i regulation 44/2001/EC41 and art 6 Para 1 rome i regulation 593/2008/EC42 as well as different direc-tives (most of all the doorstep Selling directive 85/577/EEC43 or the Consumer Credit directive 87/102/EEC44 are meant) describe the consumer contract as “a contract con-cluded by a person for a purpose which can be regarded as being outside his trade or profession” (concluded with a per-son that acts in regard to his trade or profession) therefore focusing on private persons acting for private purposes.

But this “core” definition of the term results in some problems when so called dual purpose contracts appear; dual purpose contract meaning that they cannot explicitly be distinguished from trade or business contracts as they be-long to the professional as well as to the private sphere of one of the parties at the same time.45

38 But this article shall be focused only to the question “who” could be defined as a “consumer”. For the further question “how” the average consumer is like – especially in respect of these new developments – see V. Mak, Standards of Protection: In Search of the ‘Average Con-sumer’ of EU law in the Proposal for a Consumer rights directive, ErPl 2011, 25.39 As an example see Art 4 Para 2 lit f TFEU.40 Howells/Schulze, overview over the proposed Consumer rights Directive, in Howells/Schulze (supra fn 17) 3, 25; Tamm (supra fn 17) 322.41 Council regulation 44/2001/EC of 22.12.2000 on jurisdiction and the recognition and enforcement of judgements in civil and commer-cial matters Brussels i regulation, oJ 2001 l 12/1.42 regulation 593/2008/EC of the European Parliament and of the Council of 17.06.2008 on the law applicable to contractual obligations (rome i regulation), oJ 2008 l 177/6.43 Supra fn 9.44 Supra fn 10.45 Reich, in Parry ea (eds), the Yearbook of Consumer law 2009 (2010) 18 ff; Paschke/Husmann, Gemischte Harmonisierung des Ver-

also the new Consumer rights directive does not solve this problem. The definition contained in Art 2 Para 1 Consumer Rights Directive defines the “consumer” as “any natural person who, in contracts covered by this Directive is acting for purposes which are outside his trade, busi-ness, craft or profession” and therefore follows the former version established from EU secondary law (only the ex-plicit exclusion of “craft” of the scope of application seems to be new, but is also based on former secondary law). in this context the Consumer rights directive can be seen as a consolidation of already existing rules.

Because there are no new aspects in this consolidation, a solution of the problem of dual purpose contracts and also in this context a tendency for a further development or even a change of the term „consumer“ is hard to foresee. Until now the CJEU has preferred a narrow interpretation of the term in that it sees as consumers only such persons, who “conclude[s] a contract for goods intended for purposes which are in part within and in part outside [their] trade or profession [may not rely on the special rules of jurisdiction laid down in Art 13 to 15 of the Convention], unless the trade or professional purpose is so limited as to be negligi-ble in the overall context of the supply [emphasis by the authors], the fact that the private element is predominant being irrelevant in that respect”.46 in contrast to that the cor-responding art i-1:105 (1) of the by legal literature estab-lished DCFR47 states that consumers act “primarily [em-phasis by the authors] for purposes which are not related to [their] trade, business or profession” and so it shows a much wider personal scope of application than the acquis.48

the approach of the Consumer rights directive is a compromise of these two concepts: While adopting the for-merly established “core” of a definition of the term “con-sumer” in art 2 Para 1 (see above) the directive lacks an explicit answer to the interpretation of that term. Neverthe-less recital 17 Consumer rights directive contains the con-sideration that “the definition of consumer should cover natural persons who are acting outside their trade, busi-ness, craft or profession. However, in the case of dual pur-pose contracts, where the contract is concluded for purpos-es partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract [emphasis by the au-thors], that person should also be considered as a consum-

braucherprivatrechts – Königsweg zwischen Mindest- und Vollharmo-nisierung, GPr 2010, 262 (266) (in German).46 See CJEU 20.01.2005 Case C-464/01 (Johann Gruber/Bay Wa aG) ECr 2005 i-00439.47 Von Bar/Clive/Schulte-Nölke (eds), Principles, Definitions and Model rules of European Private law (supra fn 31).48 Reich/Micklitz, Wie „optional“ ist ein „optionales“ EU-Vertrags-recht? – Einige Fragen zu einer etwas nebulösen Diskussion, EWS 2011, 113 (118) (in German).

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er“. It will be seen to what extent this indication will find expression in the judgments of the CJEU precisely because the current tendency of a narrow interpretation of the scope of application shown in the Gruber-decision can be ex-plained by the fact that on a European level – maybe differ-ent from the national approach – the focus lies more on mere economic intentions of the Union to improve the conditions for the internal market than on a model of protection be-cause of a role-specific typification of the parties.49

Another problem with the current definition of the term “consumer” results from its origin: While most of the direc-tives which led to the development of a “core” term con-tained no variances in the “border areas”, a few directives broke with the general notion, for example in the field of investments and insurance. Here the protected contractual party is sometimes called “consumer”, sometimes also “cli-ent” regardless of whether he is acting for private or profes-sional purposes. the same applies for the “principal con-tractor” who takes the package according to the Package tours directive 90/314/EEC50. the following section shall review these examples as well as the question which other “ancillary sectors” exist besides the mentioned ones and to what extend these fit into the existing European consumer law. also the term “consumer” shall be reconsidered in the following.

2. “ancillary sectors”

a) Passengers’ rights

First of all a look to the passengers’ rights sector shall be taken, that is aimed by the EU to get a homogeneous legal framework for passengers of all means of transport.51 the rules which are contained in different kinds of legal acts until now – predominantly the air Passengers’ rights regu-lation 261/2004/EC52 and the railway Passengers’ rights regulation 1371/2007/EC53 – shall medium termly be con-solidated.54 already deriving from art 95 Para 3 Subpara 2 TFEU („to ensure that users benefit from it to the full”) it is

49 Tamm (supra fn 17) 325 (in German); Reich, Variationen des Ver-braucherkaufrechts in der EU, EuZW 2011, 737 (in German).50 Supra fn 11.51 CoM (2011) 898.52 regulation 261/2004/EC of the European Parliament and of the Council of 11.02.2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, OJ 2004 L 46/1.53 regulation 1371/2007/EC of the European Parliament and of the Council of 23.10.2007 on rail passengers’ rights and obligations, oJ 2007 l 315/14.54 White Paper “roadmap to a Single European transport area – towards a competitive and resource efficient transport system”, COM (2011) 144.

noteworthy that the contractual party of the carrier is exclu-sively referred to as “user”. this term covers natural persons regardless of the purpose of the planned journey, so that all in all private travellers as well as business travelers fall into the scope of application.55 though the explicit terms differ both the jurisdiction of the CJEU as well as legal writers assume unanimously that the issuance of further passengers’ right would raise the level of consumer protection.56 So the terms “consumer” and “user” are extensively used as syno-nyms for each other in the field of passengers‘ rights.

b) Energy

on the energy sector the situation seems to be similar. the current – third – Single Energy Market Package, in which mainly the Electricity directive and the Natural Gas direc-tive57 are of vital importance, contains protective rules for the contractual party called the “customer”. according to the definitions in Art 2 Para 7–12 Electricity Directive this term generally means “a wholesale or final customer of electricity”; the Directive, however, also specifies a “final customer” as well – as an even more special alternative – the “household customer” depending on the legal nature of the subject (natural person or legal entity) or the intended pur-pose of the object (private or business use). Similar to the passengers’ rights sector described above the analyzing legal literature also assumes here that there is some kind of identity (at least) between “(household) customers” and “consumers”.58

c) Telecommunication

At a first glance the sector of telecommunication seems to be dominated by considerable confusion: Art 2 Framework directive 2002/21/EC59 contains definitions of the terms “user” (lit h): “a legal entity or natural person using or

55 Karsten, Beförderung in tamm/tonner (supra fn 17) § 24 No 260 ff (in German).56 Karsten, in Tamm/Tonner (suprafn 17) § 24 No 260 ff (in German); Gaedtke, Fahrgastrechte im öffentlichen Personenverkehr und ihre durchsetzung in der Praxis (2011) 16 (in German).57 Natural Gas directive 2009/72/EC of the European Parliament and of the Council of 13.07.2009 concerning common rules for the internal market in natural gas, oJ 2009 l 211/55 and Electricity directive 2009/73/EC of the European Parliament and of the Council of 13.07.2009 concerning common rules for the internal market in elec-tricity, oJ 2009 l 211/94.58 Tonner, Elektrische Energie und Gas, in tamm/tonner (supra fn 17) § 21 No 27 (in German); Theobald in Schneider/theobald, recht der Energiewirtschaft (2008) § 1 No 114 (in German).59 directive 2002/21/EC of the European Parliament and of the Coun-cil of 7.03.2002 on a common regulatory framework for electro - nic communications networks and services (Framework Directive), OJ 2002 l 108/33.

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requesting a publicly available electronic communications service”), “consumer” (lit i): “any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business or profession”), “subscriber” (lit k): “any natural person or legal entity who or which is party to a contract with the provider of publicly available electronic communi-cations services for the supply of such services”) and “end-user” (lit n): “a user not providing public communications networks or publicly available electronic communications services”). On closer examination “user” in general fulfills some kind of dominant hierarchical function, while the sub-ordinated “consumer”, “subscriber” and “end-user” partly overlap to guarantee an effective protection of the demand-ing party, as for example expressed by art 8 Para 2 lit a of the Framework Directive.

d) Interim conclusion

a comparison of these different sectors allows the conclu-sion that the field of regulated contracts – despite the usage of different terms for the protected party under considera-tion of the specific circumstances – fits all in all into the scope of consumer law, even though this is not expressively mentioned.

3. Possible future perspective

Even with respect to existing differences in detail the previ-ous analysis shows a general tendency that it increasingly depends less on the strict conditions of a “for no business reasons” acting “private person” anymore to find out who can be assumed as a consumer. as has been pointed out, the named sectors are very often addressed as consumer law issues in legal literature. therefore it is in our opinion highly regrettable that the new Consumer rights directive does not adopt this approach but stays with the consolidation of previous definitions – this counts even more regarding the economic impact of the whole service sector for private law.60

But (yet) the Directive, however, has not taken this step; we are not saying it should have, as it is maybe not the right time yet. it has already been mentioned that the current hes-itant interpretation of the term “consumer” by the CJEU can be explained with the lack of a widespread European sys-tematization. However, a new tendency might exist next to that or might at least start to exist soon: Because of increas-ing interaction with regards to content and codification of the different rules for consumer protection the codification

60 Karsten/Seidenspinner, „Zum Vorteile des Verkehrsnutzers“ – Zwan-zig Jahre EU-Passagierrecht im Spannungsfeld zwischen international governance und europäischen Nutzerrechten, ZEuP 2010, 830 (in Ger-man); for the relevance of services of general interest see Rott, Consu-mers and services of general interest, JCP 2007, 53.

of a common European civil code might be imagined (in the distant future). the proposal of a CESl, however, does not meet such expectations, as it also does not contribute to the adjustment of the term “consumer”.

to this day it can hardly be foreseen how the term „con-sumer“ should be defined in such an entity and whether is shall express a role-specific typification like in some nation-al legal systems. one possibility could be an extension of the term, especially an explicit adoption of the “ancillary sectors” discussed in this article, by calling the persons “us-ers” under this scope of application with regard to the cir-cumstances of the specific contracts.

V. Minimum versus full harmonisation

the most discussed issue in the debate of the proposal of the Consumer rights directive was the intention of the Com-mission to give up the minimum standard principle. Many legal scholars argued against this idea.61

1. Minimum standard harmonisation: one step too short?

the minimum standard principle was established in a time, when there was some need for harmonisation of the law as part of the internal market policy, but when member states were not yet prepared to accept a common standard of con-sumer policy. Minimum standards were a compromise in fields, where member states legislation existed and/or had been recently adopted as was the case with consumer legis-lation. it allowed more advanced member states to maintain their high standard, and raised the standards of the less advanced member states to a certain threshold which was defined by European legislation. So the differences in legis-lation were reduced, but not abolished. By increasing the level of protection of the less developed member states to the standard of the European legal instruments and at the same time allowing the more advanced member states to maintain their standards higher than the standard of the European instrument, all in all the average standard in the European Union was raised.

it is important to state that due to the minimum standard policy the average standard in the (then) EC was not the standard of the directives, but a standard between the di-rectives and the standard of the more advanced member states.62 So a mere replacement of the minimum standard principle by that of a full harmonisation would automati-cally lead to a drop of the average standard in Europe, if the standard of the directive(s) is not increased as such.

61 See supra fn 17.62 this point is stressed by Howells/Schulze, in Howells/Schulze (supra fn 17) 3 ff and 25.

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the minimum standard principle has the advantage (or disadvantage – depending on the point of view) that mem-ber states can easily guide the development of new consum-er law and quickly respond to new problems especially in the field of IT related consumer problems with new legal instruments. the task of the European legislator in this mod-el is reduced in this model to adjusting the legislation of those member states which were to that point not aware of such new problems to common minimum standards. From a point of view which would leave as much autonomy as pos-sible to the member states for reasons of cultural differences between them even in the long run,63 the minimum standard principle therefore would be the preferred instrument.

This model, however, does not fit reality. Even the existing acquis before the Consumer rights directive has never been an expression of average member states’ legislation. Quite on the contrary, the European legislator often tries to tackle new problems with new solutions. this is especially true for the E-Commerce-directive and for legislation outside the scope of the 2007–2013 Strategy such as passengers’ rights64, tele-communication or energy65. remarkably, all these directives are not based on a B2C relation, but on a relation between user or client and supplier. These fields are on the – Europe-an! – agenda for the years coming. to cut it short: the Euro-pean legislator must be able to give an input with regard to contents. Not autonomy of the member states is required, but a shared responsibility between member states and the Euro-pean level. this question has to be asked beyond the question which competences the TFEU allocates to the European Un-ion and which competences are left to the member states. the question is, whether the “old” minimum standard principle of the 1980s and 1990s can meet this challenge. if not given up, the minimum standard principle must be at least further de-veloped.

2. Full harmonisation: One step too far?

a) Full harmonisation is no full harmonisation

At first glance one is tempted to argue the following: The full harmonisation principle could avoid all the disadvan-tages of the minimum standard principle. it would lead not

63 For this position Tamm (supra fn 17) 240 ff; Wilhelmsson, introduc-tion: Harmonisation and national cultures, in Wilhelmsson/Paunio/Pohjolainen (eds), Private law and the many cultures of Europe, (2007) 3 ff.64 Communication from the Commission to the European Parliament and the Council, a European Vision for Passengers: Communication on Passenger rights in all transport modes, CoM (2011) 898.65 the third Single Energy Market Package of the EU includes sub-stantial consumer related provisions. It consists of five Regulations and directives of which the most relevant are the Electricity directive 2009/73/EC and the Natural Gas directive 2009/72/EC (see both supra fn 57).

only to an approximation but a full unification of the mem-ber states’ laws. the (alleged) needs of the internal market would be satisfied, and the complete shift of responsibility for consumer policy to the Union would avoid any further discussion how to balance European and national responsi-bilities and legislation. it could be argued that the European integration process will reach that stage one day, so why not now and why should further intermediate steps be estab-lished on a way which will unavoidably end in full harmo-nisation anyway?

However, we do not want to follow this line of argu-ments. First, the full harmonisation principle does not avoid problems of delimiting autonomous national law from Eu-ropean law. The question which fields are left to regulation by the national legislator will still be raised. one wonders why the European legislator did not change from directives to regulations.66 if nothing shall be left to the national leg-islator, a regulation is the adequate instrument. But even if the form of a regulation had been chosen, “accompanying” legislation of the member states would not be excluded. the German “adaptation act” to the railway Passengers’ rights regulation 1371/2007/EC67 may serve as an example. in other fields of European law, for example agricultural and food law, where secondary law only consists in regulations, member states still adopt national law “around” these re-gulations.68 another question is whether full harmonisation in special sectors will affect the application of general prin-ciples of national law, especially those provided for by Civil Codes69 or common law70. the legal transplant de-

66 this is proposed by Reich, a European contract law or an EU Con-tract law regulation for consumers?, JCP 2005, 383 and Twigg-Fle-sner, Good-bye harmonisation by directives, hello cross-border only regulation? – a way forward for EU consumer contract law, ErCl 2011, 235; Twigg-Flesner, a Cross-Border-only regulation for Con-sumer Transaction in the EU: A Fresh Approach to EU Consumer Law (2012).67 Gesetz zur anpassung eisenbahnrechtlicher Vorschriften an die Ver-ordnung 1371/2007/EG, BGBl 2009 I 1146. For a discussion what is left to the national legislator by the EU passenger rights regulations see Lindner/Tonner, Fahrgastrechte als Verbraucherrecht auf mehreren Ebenen, GPr 2011, 86, 88 ff (in German).68 a present problem is the question whether member states are entitled to adopt so called “traffic light labelling” regulations, after the new regulation 1169/2011/EU on the provision of food information to con-sumers, oJ 2011 l 304/18, denied to introduce such a regulation.69 From the German point of view consumer credit law is an example. Even after the transposition of the new Consumer Credit directive the relevant sections of the BGB provide for more consumer protection than the directive.70 in English law the transposition of the Consumer Sales directive is an example: English sales law provides for consumer contracts not only the remedies of the directive, but all remedies foreseen in tradi-tional English sales law, see Zerres, die Bedeutung der Verbrauchsgüt-erkaufrichtlinie für die Europäisierung des Vertragsrechts (2007) 98 ff (in German).

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bate71 should have shown that a European legal instrument will never be the same in two different member states, after it is embedded into a body of national law. the mere decla-ration of a legal instrument as “fully harmonising” is defi-nitely not far reaching enough to avoid such an effect.

b) Full harmonisation cuts down the average standards of member states

the Consumer rights directive is only a more coherent successor of the doorstep Selling directive and the dis-tance Selling Directive; it consolidates the already existing status quo, but is no step further on the path of consumer protection – with some slight exemptions as shown above (see iii.). We do not question the “more coherence” approach, quite the contrary; in so far the new generation of directives is a step further that must be appreciated. But as already shown due to the minimum standard principle the average standard in the EU was higher than the standard of the acquis. Changing the minimum standard principle to a full harmonisation principle without increasing at the same time the level of consumer protection of the acquis neces-sarily means a decrease of the European average standard.72

to give an example from German law: according to § 355 Para 3 German Civil Code (Bürgerliches Gesetzbuch – BGB) the right to withdraw from the contract has no time limit, if the consumer is not properly informed of this right. this section was adopted after a decision of the CJEU ac-cording to which an unlimited right to withdraw follows from the doorstep Selling directive.73 the German legisla-tor did not grant the right to withdraw without limitation only to doorstep selling transactions, but to all cases in which a right to withdraw exists, e.g. in distance selling cases or in consumer credit contracts.74 according to art 10 Consumer rights directive the right to withdraw expires after 12 months from the end of the initial withdrawal peri-od in case the trader fails to inform the consumer of his right. this will force the German legislator to repeal § 355 Para 3 BGB – a clear step of consumer protection cutback,

71 Teubner, legal irritants: good faith in British law or How Unifying Law ends up in New Divergences, Modern Law Review (1998) 11 ff; Wilhelmsson, legal integration as disintegration of national law, in Petersen/Zahle (eds), legal polycentricity: consequences of pluralism in law (1997) 127 ff; for a German aspect Janssen/Schulze, legal cul-tures and legal transplants in Germany, ErPl 2011, 225.72 Howells/Schulze, in Howells/Schulze (supra note 17), 3 ff and 25; with regard to the parallel problem of the DCFR Eidenmüller/Faust/Janssen/Wagner/Zimmermann, towards a revision of the consumer acquis, CMlrev 48 (2011) 1077–1123.73 CJEU 13.12.2001 Case 481/99 (Heininger/Bayerische Hypo- und Vereinsbank aG) ECr 2001 i-09945.74 German law provided for a right to withdraw as autonomous Ger-man provision even before the new Consumer Credit directive came into force.

forced by the full harmonisation principle of the Consumer rights directive.

c) Full harmonisation disregards the principles of sincere cooperation and subsidiarity

According to Art 4 Para 2 lit f TFEU consumer protection is one of the fields where the Union may take action if it thinks it should. the provision is called “shared competences”, but this does not mean that the European Union and the member states play on an equal level. Member states have compe-tence only as long as the Union does not make use of its right. European legislation clearly prevails.

But this does not mean that the Union is allowed to adopt measures at its own discretion without regard to the needs of the member states. The competence rules of Art 2 ff TFEU are only a frame within which other provisions of the treaty may draw stricter lines. So according to art 4 Para 3 tEU (lisbon) the principle of sincere cooperation must be ob-served. this article provides for obligations not only to member states vis-à-vis the Union, but also vice versa.

the principle of subsidiarity, now art 5 Para 3 tEU (lis-bon), is even of more relevance. it means that “the Union shall act only if and in so far as the objectives of the pro-posed action cannot be sufficiently achieved by the Member States […], but can rather […] be better achieved at Union level”. With regard to consumer policy the subsidiarity prin-ciple becomes significant, especially when the Union makes use of the internal market competence. it is shown that this competence does not justify every unification of the law, if it is not disclose that the unification is necessary for the functioning of the internal market.75

But the most important provision in this context is Art 169 TFEU. It still reads – as did its predecessor Art 153 tEC – that the Union (only) contributes to consumer protec-tion. this is to say that – according to the wording – there must be someone else who contributes. this can only be the member states. So the Union has to leave some space for member states. in order to meet the concept of shared re-sponsibility provided for in Art 169 TFEU both, the Union and the member states have to contribute.

75 Tamm (supra fn 17) 301 ff (in German). after the adoption of the CESl resp. the foregoing Green Paper of 2010 an extensive debate started on the competence for a European contract law; see among oth-ers Gutman, the Commission’s 2010 green paper on European con-tract law: Reflections on Union competence in light of the proposed options, ERCL 7 (2011) 151; Kuipers, the legal basis for a European optional instrument, ErPl 19 (2011) 545 ff. See also the statements of the rechtsausschuss des deutschen Bundestages, available under www.bundestag.de/bundestag/ausschuesse17/a06/anhoerungen/archiv/ 16_Europaeisches_Kaufrecht/04_Stellungnahmen/index.html; Riesen - huber, EWS 2012, 7; Roth, EWS 2012, 12; Tamm, das Gemeinsame Europäische Kaufrecht als optionales instrument – eine kritische analyse zur Binnenmarktharmonisierungskompetenz der Union, Vur 2012, 3.

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all consumer protection instruments are based on the in-ternal market competence (Art 114 TFEU), not on Art 169 TFEU. It is suggested in literature to make use of Art 169, which would have the consequence that the minimum stand-ard principle is automatically applicable, as it is already foreseen in art 169 itself.76 We will not dispute that art 169 might be used as a competence for consumer measures, but the same is true for art 114, so that it does not contradict primary law to adopt full harmonising directives.77 But the extent of such full harmonisation must be exercised in the light of the other principles just mentioned, so that the mem-ber states are left with some space for own action.

3. targeted harmonisation as adequate expression of the present stage of European integration?

on one side it is an illusion to believe that minimum harmo-nisation as it underlies the directives of the 1980s and 1990s could be maintained. This would be a step backwards; it has already been mentioned that the European legislator had made that step even before the enactment of the Consumer Rights Directive, namely regarding distant selling of finan-cial services in 2002,78 regarding timesharing in 2008,79 and – most importantly – regarding consumer credit in 2008.80 the status of integration today is different from the 1980s and 1990s, and so, to cut it short, it would be an unhistorical view of the still on-going integration process of the European Union to ask for a revival of the minimum standard principle.

at the same time this is not meant to be a plea for full harmonisation. of course possibly one day there might be a fully harmonised European consumer contract law at EU level. But this day is not only far ahead, so that there must be some interim stops on the road, but there are two princi-ples which must be respected on that way: First, the stand-ard of consumer protection must not be decreased, and sec-ond, some kind of member states’ autonomy must remain, at least as long as public discussions on political matters take place on a national, not a European level – in other words: as long as European citizens watch BBC News or the ta-gesschau and not a European news channel.

76 Reich, JCP 2005, 383.77 another question, which we cannot discuss here, is the tension between internal market policy and the high level of consumer protec-tion within Art 114; see Howells, European Contract law reform and European Consumer law – two related But distinct regimes, ErCl 2011, 173 (186 ff); Tamm (supra fn 17).78 See the Distance Marketing of Financial Services Directive (supra fn 23).79 See the directive on the protecting of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (supra fn 24).80 See the directive on credit agreements for consumers (supra fn 25).

a) No decrease of consumer protection level

as has already been pointed out, the approach of the Con-sumer Policy Strategy 2007–2013 leads to a decrease of the existing consumer protection level within the Union, as the average level within the Union is defined by member states’ law and not by the acquis of the Union. Not the full harmo-nisation as such causes this decrease, but the combination of two approaches underlying the Strategy: Full harmonisation and coherence of the existing acquis.81 this acquis is a standard below the existing European standard and so mak-ing this standard binding automatically means to decrease the European standard. if the European legislator had intended to maintain the existing standard at the occasion of the introduction of the full harmonisation principle, he should have proposed a completely new consumer protec-tion acquis. He could not rely on the existing acquis which was adopted as minimum standard. But obviously he only intended to make the existing law more coherent; otherwise he should have done far more preparatory works for the Consumer rights directive.82 So he implicitly accepted a loss of consumer protection. Consumer protection was vic-timized on the altar of alleged needs of internal market poli-cy.83 this is not acceptable.

b) No complete loss of member states’ autonomy

as has also been pointed out, the principles of European primary law of the Union mean “shared responsibility” of the Union and the member states in the field of consumer protection. This follows especially from Art 167 TFEU and means that the Union as well as the member states have the right to contribute autonomously to consumer protection. From a political point of view, we regard that this shared responsibility should be maintained as long as there is no general European public.

c) Targeted harmonisation as a way out

in the days of former Commissioner Kuneva84 a principle of targeted harmonisation was developed as compromise between a “hard” full harmonisation and the attacks in the

81 Very critical remarks to the DCFR, which also simply follows the acquis, without to challenge it, can be found in Eidenmüller ea, CMl-rev 48 (2011) 1077.82 the Consumer law Compendium (Schulte-Nölke/Twigg-Flesner/Ebers, EC Consumer law Compendium: the consumer acquis and its transposition in the member states [2008]) could have served as a step on this way, but the Commission did not draw conclusions from the Compendium when drafting the proposal of the Crd.83 Here we cannot discuss the differences between consumer protec-tion policy and consumer policy, see supra ii. 3.84 Consumer Protection Commissioner 2007–2010.

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Council against this principle. it means that full harmonisa-tion does not cover the whole field of a Directive, but leaves space for member states in so far as it does not block auton-omous member states’ regulations for problems which are not addressed by a directive. to give an example: the Con-sumer Credit directive does not regulate the question, whether a consumer credit agreement may be void because of an unreasonable interest rate. So, relevant member states’ legislation may remain applicable.85 also the Consumer rights directive offers examples for targeted full harmoni-sation. However, it is not easy to find out, which questions are addressed by the provisions of a directive and which are not and to shape exactly the applicability of a single provi-sion of a directive, but this work must be done by doctrine and in particular by the courts, finally by the CJEU.

the targeted full harmonisation approach has the advan-tage that the European legislator is able to decide which as-pects of a problem should be regulated so that member states are not allowed to deviate from the European rule, but that member states are free to regulate problems which are neglected by the European legislator or which did not ap-pear yet at the time when the relevant European legislation was adopted. it allows fully harmonising European law pre-vailing to national law and at the same time leaves some space for autonomous national legislation. So it seems to be the adequate interim step on the long way of the European integration process.

VI. Consumer Rights Directive and CESL

1. the background

the adoption of the proposal of a Common European Sales law (CESl) by the Commission in october 201186 was immediately followed by an intensive debate with special issues of legal journals,87 conferences,88 books89 and state-ments of governmental bodies.90 the discussion of the Con-

85 Example: German case law avoiding consumer credit contracts on the basis of the general clause of the BGB in § 138.86 CoM (2011) 635.87 European review of Private law 19 (2011) Volume 6 with an intro-duction by Hondius, towards an optional Common European Sales law, 709 ff. 88 European Legal Academy in Trier in February 2012 and a special meeting of the deutsche Zivilrechtslehrer-Vereinigung in Bonn in april 2012.89 Janssen/Schulte-Nölke/Schulze/Zoll (eds), der Entwurf für ein optionales europäisches Kaufrecht (2012); Schmidt-Kessel (ed), Ein einheitliches europäisches Kaufrecht? – Eine analyse des Vorschlags der Kommission (2012)90 (English) law Commission & Scottish law Commission, an optional Common European Sales law: advantages and problems (2011).

sumer rights directive nearly disappeared alongside this debate, though the latter is officially adopted by Council and Parliament, whereas the CESl is “just” a proposal.91 though this paper focuses on the Consumer rights directive and not on the CESl we cannot ignore the CESl, as the two partly overlap and as both means of legislation are (or – in the case of CESl – would be) applicable to consumer con-tracts.92 The question is, whether the CESL fills the gaps which are left by the shortcomings of the Consumer rights directive as described above. it obviously does, and so the relation between the Consumer rights directive and the CESl needs further scrutiny. the Consumer rights direc-tive is “hard law” which must be implemented by the mem-ber states and which is mandatory for B2C contracts, whereas the CESl is only “optional”. Can and should optional instruments play a role in the next steps of con-sumer protection law? our answer is a clear “no”.

the background of the CESl from the Communication of 2001 to the Feasibility Study of May 2011 is described above.93 the two strands of contract law and consumer law have not been connected with each other for a long time. But in July 2010 the Commission published a green paper which proposed an optional cross-border instrument also for B2C contracts.94 this paper was published after the original draft of the Consumer rights directive had failed in Coun-cil and Parliament, this is to say after the parts on sales of consumer goods and on unfair contract terms were deleted from the draft. the proposal of the CESl is the optional in-strument, as more or less announced by the green paper of the Commission. It is based on the DCFR and the Feasibil-ity Study which already had included the consumer acquis.

our critical remarks regarding the consumer acquis, stat-ing that it does not – due to the minimum standard principle – represent the average level of consumer protection of the member states, apply to the Feasibility Study and the CESL as well. Both are based on the existing acquis and not on a comparative analysis of member states’ law, and by turning the minimum standard principle, they are necessarily below the average member states’ standard.

91 For a discussion of consumer contract law and the CESL re. the fore-going Green paper and the Feasibility Study see Zoll, das Konzept des Verbraucherschutzes in der Machbarkeitsstudie für das optionale instrument, euvr 2012, 9 ff 92 the overlapping of the (then) proposal of the Consumer rights Directive and the DCFR was already discussed in German in Tonner/Tamm, der Vorschlag einer richtlinie über Verbraucherrechte und seine auswirkungen auf das nationale Verbraucherrecht, JZ 2009, 277.93 Supra ii.94 COM (2010) 348; see the papers delivered to the SECOLA con-ference „a European optional Contract law – Policy Choices”, on 14.–15.012011 in Leuven, published in ERCL 2011 no. 2; Tonner, EuZW 2010, 767 (in German).

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2. Will the CESL fill the gaps left by the Consumer rights directive?

as the Commission has failed to review the Consumer Salesdirective and the Unfair Contract terms directive within the frame of the Consumer rights directive, the question ovf the future of these two directives remains. they consti-tute a core part of the consumer acquis. the Commission obviously does not intend to produce new proposals with regard to the two directives, so that they will remain in force as they are for the next future, namely as minimum standard directives. Member states will be able to provide for more consumer protection in the fields of sales of con-sumer goods and of unfair contract terms. For the time being the minimum standard principle has “survived” in core parts of consumer law of the Union.

But once the proposal of the CESl is adopted, businesses may escape from such national rules providing for more protection than the directives – at least in cross-border con-tracts. the CESl may produce some pressure on member states to adapt the national law to the CESl or to open the option for the CESl for mere national contracts to avoid two legal regimes for consumer contracts. Efforts to im-prove consumer protection rules in these areas on a national level may weaken as the CESl may serve as a model and national legislators might have no interest to deviate from this model to avoid too many differences between the na-tional and the cross-border regime. But as pointed out above the level of protection of the CESl is below the existing average European level (supra V. 1).

The Commission may be satisfied by such a development and refrain from a further review of the Consumer Sales directive and the Unfair Contract terms directive, as the main focus of the Commission lies on the internal market. the CESl may in this view replace the review of the two Directives. The CESL might fill the gaps which are left by the omissions of the final Consumer Rights Directive com-pared with the original proposal. the Commission might wait whether the CESl will be successful and eventually switch generally from hard law to optional law.

However we are not of the opinion that consumer protec-tion directives – this is to say hard law – may be substituted by the CESl or any other optional law. optional law means a choice for businesses only, not for consumers, and so it must be attractive for businesses to be successful, not nec-essarily for the consumer. the CESl represents the stand-ard of the acquis including the proposal of the Consumer rights directive, but it cannot be expected that there will be any progress with regard to consumer protection under these circumstances in the future. the CESl will freeze the existing standard in favour of business. this is not accept-able, as constant challenges of technical and economic de-velopment will constantly require adaptations to new needs

of consumer protection. as the consumer is the weaker party, this needs hard law with no escape for the business sector.

the “left overs” of the Consumer rights directive, this is to say the review of the Consumer Sales directive and the Unfair Contract terms directive, have to remain on the agenda and have to fill a prominent place in the forthcoming successor of the Consumer Policy Strategy 2007–2013. Forthcoming proposals will not only have to address the need for more coherence of the existing acquis, as the pro-posal of the Consumer rights directive did, but will have to face the fact that consumer protection is a constantly ongo-ing process which in the 2010s cannot rely on the standards of the 1990s. in particular, the discharge of the minimum standard principle requires research of the existing protec-tion level in the member states95 and an open view for areas which are outside the traditional fields of consumer policy as addressed by the Consumer Policy Strategy 2007–2013.

VII. Conclusion: The Consumer Rights Directive is not the new approach which is necessary

it must be appreciated that the Consumer rights directive pursues the goals of more coherence and full harmonisation, as long as full harmonisation is limited to targeted full har-monisation. But the directive fails to reach both of these goals:

We agree with the concept of one horizontal and several vertical directives. But the concept is limited to only six (originally: eight) traditional directives of the 1980s and 1990s, which concentrate on consumer contract law. Up-stream (unfair commercial practices) and downstream areas (consumer redress) are neglected as well as new types of service contracts, especially services of general interest. the Commission failed to realize even this limited concept, as the proposal of the Consumer rights directive lost on its way to adoption by Council and Parliament substantial parts like sales of consumer goods and unfair contract terms. these losses can and should not be bridged by optional in-struments like the CESl.

the term ”full harmonisation” as such is far from clear. Even a “hard” full harmonisation would not result in a com-plete unification of the relevant member states’ law as ex-amples show where regulations are in force, which still leave some space for member states “around” the regula-tions (passenger law, food law). We plead for such a room for autonomous member states law, at least at the present stage of the European integration. this “shared responsibil-ity” could be reached best by a concept of targeted full har-

95 like it had been done by the Schulte-Nölke Study, but this one has not been evaluated any further.

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monisation. Jurisprudence and the EU should elaborate, what such an approach could mean. Finally, the term of “consumer” as used in the Consumer rights directive ig-nore that in many consumer related matters (transport, en-ergy, food) EU legislation is based on the “user”, not the “consumer”, so that in a horizontal directive the question should have raised, whether the term of “consumer” needs an adaption.

the “left overs” of the Consumer rights directive are more than marginal. the forthcoming Consumer Policy Strategy 2014–2020 should solve them with an approach that– extends the goal of coherence to pre-contractual and

post-contractual consumer protection law,

– broadens the numbers of contracts which are part of con-sumer protection law, especially with regard to services of general interest,

– examines the term of “consumer” with regard to the term of “user” as used in other legal instruments dealing with consumer protection,

– raises the standards of the existing acquis with regard to the needs of full harmonisation, especially by reviewing the information model,

– refrains from bridging existing gaps by means of optional law and

– applies the principle of shared responsibility with the member states through a clearly shaped concept of tar-geted full harmonisation.

Documents

Directive 2011/83/EU on consumer rights: a new approach to European consumer law?