EU Consumer Law and Human Rights (Oxford Studies in European Law)

Traditionally, consumer law has played an instrumental role in the EU as a tool for market integration. There are now signs in the new EU legal framework and jurisprudence that suggest this may be changing. These changes can be seen in recent court cases and, above all, the Lisbon Treaty and the EU Charter of Fundamental Rights. The Treaty contains provisions affecting consumer law and, at the same time, it grants binding legal force to the EU Charter, which adds a fundamental rights dimension to consumer protection. This evolution, however, is still at an early stage and may be thwarted by conflicting trends. Moreover, it may generate tensions between social objectives and economic goals. This book provides the first comprehensive analysis of these developments and examines new avenues that may be opening for consumer law, focussing on three key areas: financial services, electronic communication, and access to justice. Through a systematic analysis of relevant cases the book traces the development of a human rights dimension in consumer law and details the potential ramifications that the post-Lisbon legal framework may have on consumer protection and on related policy issues. This book concludes by providing ideas for a new legal approach to consumer law which strikes a compromise between social and economic demands. Cover 1 EU Consumer Law and Human Rights 5 Copyright 6 PREFACE 7 ACKNOWLEDGMENTS 9 CONTENTS 11 TABLE OF CASES 15 TABLE OF LEGISLATION 19 1 Introduction 27 2 Consumer Law and the Market 35 1. Introduction 35 2. Historical Evolution of Consumer Law and Policy 36 2.1. The lack of a consumer law category 37 2.2. Political recognition of the consumer at the international level 38 2.3. Different national models of consumer protection 40 2.4. The notion of the average consumer in EU law 42 3. The European Union’s Competence in Consumer Law 44 3.1. The Treaty of Rome 44 3.2. The Single European Act 47 3.3. The Treaty of Maastricht 49 3.4. The Treaty of Amsterdam and the Tobacco Advertising case 52 4. Consumer Policy and the Lisbon Treaty 57 4.1. The full-harmonization trend 57 4.2. The implications for national systems 59 4.3. The citizen consumer and the Charter of Fundamental Rights 63 4.4. The Lisbon Treaty 65 5. Conclusions 69 3 The Evolution of Consumer Protection and Human Rights 71 1. Introduction 71 2. The International Law Context 72 2.1. Consumer protection as a new generation of human rights? 72 2.2. Implicit consumer protection in human rights agreements 75 2.3. The United Nations Guidelines for Consumer Protection 76 2.4. Debates on human rights 77 2.5. The impact of international law on consumer protection 79 3. Consumer Protection in the EU Charter of Fundamental Rights 80 3.1. The creation and the aim of the Charter of Fundamental Rights 80 3.2. The functions of the Charter and its social dimension 82 3.3. The relevant provisions in the Charter for consumer protection 84 3.4. The scope and limited application of the Charter 87 3.5. The difference between rights and principles 89 3.6. The implications of the Charter and the Lisbon Treaty 91 4. The Influence of Constitutional Rights and Principles 94 4.1. Constitutional consumer law models in selected countries 94 4.2. The impact of constitutional rights and principles on contracts 97 4.3. The protection of health and safety 98 4.4. Consumer codes 101 5. Conclusions 101 4 A Broader Perspective on Consumer Protection and Human Rights 103 1. Introduction 103 2. The Transformed Role of the Consumer 104 2.1. Changes in markets and regulation 105 2.2. Changes in consumers, vulnerable groups, and ethical trends 107 2.3. Adapting consumer law to economic and social changes 109 3. Freedom, Capabilities, Human Rights, and Procedures 111 3.1. Economic efficiency, freedom, and justice 111 3.2. Substantive freedoms, capability, and ethical demands 115 3.3. Human rights 119 3.4. Procedural rights and participation 122 4. Reassessing EU Consumer Law and Fundamental Rights 124 4.1. Economic and social dimensions of consumer law 125 4.2. Social responsibility and sustainable behaviour 127 4.3. Procedural rights—a catalogue for consumer law? 130 4.4. Feasibility and policy implications 132 5. Conclusions 133 5 Consumer Protection and Financial Contracts 135 1. Introduction 135 2. Financial Consumer Protection and Credit Regulation 136 2.1. The rise of consumer credit and EU regulation 139 2.2. The 2008 Credit Agreements Directive and its focus on information 142 2.3. Responsible lending 145 2.4. Social justice debates 147 3. Fundamental Rights, Social Principles, and Non-Discrimination 149 3.1. The role of the Charter 150 3.2. Constitutional principles in financial guarantor cases 152 3.3. Protection of guarantors by the ECJ 154 3.4. The fundamental right of non-discrimination 156 4. Financial Capability and Over-Indebtedness 159 4.1. Corporate responsibility and social banking 160 4.2. Financial literacy and education 163 4.3. The ‘fresh start’ in consumer bankruptcy 166 5. Conclusions 169 6 Electronic Communication, Fundamental Rights Conflicts, and Consumer Participation 171 1. Introduction 171 2. Liberalization and Universal Services 173 2.1. Evolution of the current legal framework 174 2.2. The concept and justification of universal services 176 2.3. Services of general economic interest in primary law 177 2.4. Universal services in secondary law 180 3. Information, Unfair Terms, and Fundamental Rights Conflicts 182 3.1. Consumer empowerment through information 183 3.2. Protection from unfair terms and dispute resolution 185 3.3. Data protection as a human right 186 3.4. Balancing fundamental rights 188 3.5. The Scarlet Extended case 190 4. Consumer Participation 192 4.1. Participation and representation of consumer interests 193 4.2. The Communications Consumer Panel and EU consultations 194 4.3. Participation and the citizens’ initiative after Lisbon 197 5. Conclusions 199 7 Consumers’ Access to Justice and Procedural Rights 201 1. Introduction 201 2. Access to Justice as a Human Right 202 2.1 Access to justice barriers 203 2.2. Existing redress mechanisms in the EU 205 2.3. Collective redress mechanisms in Member States 207 2.4. A typology of collective redress cases 209 3. Procedural Consumer Rights 212 3.1. Recent developments in EU law and policy 212 3.2. The principle of effectiveness and EU competences 216 3.3. Developing EU collective redress procedures for consumers 218 3.4. Alternative dispute resolution and fundamental rights 221 3.5. The new legislation on ADR and ODR 225 4. Litigation Funding 228 4.1. The fundamental right to legal aid 228 4.2. Contingency fees 231 4.3. Conditional fee agreements and human rights limitations 232 4.4. Third-party funding and legal expenses insurance 233 4.5. Consumer actions and class proceedings funds 234 5. Conclusions 235 8 Conclusions 237 BIBLIOGRAPHY 243 INDEX 263 Traditionally, consumer law has played an instrumental role in the EU as a tool for market integration. There are now signs in the new EU legal framework and case law which suggest this may be changing. This incipient transformation arises from recent court cases and, above all, from the Lisbon Treaty and the EU Charter of Fundamental Rights. The Treaty contains new provisions affecting consumer law and, at the same time, it grants binding legal force to the EU Charter, which adds a fundamental rights dimension to consumer protection. This evolution, however, is still at an early stage and may be thwarted by conflicting trends. Moreover, it may generate tensions between social objectives and economic goals. This book provides the first comprehensive analysis of these developments and examines new avenues that may be emerging in consumer law, focussing on three key areas: financial services, electronic communication, and access to justice. Through a systematic analysis of relevant cases, the book traces the development of a human rights dimension in consumer law and details the potential ramifications that the post-Lisbon legal framework may have on consumer protection and on related policy issues. It concludes by providing ideas for a new legal approach to consumer law, capable of striking a compromise between social and economic demands Traditionally, consumer law has played an instrumental role in the EU as a tool for market integration. There are now signs in the new EU legal framework and jurisprudence that this may be changing. The Lisbon Treaty contains provisions affecting consumer law and, at the same time, it grants binding legal force to the EU Charter, which in turn adds a fundamental rights dimension to consumer protection. This evolution, however, is still at an early stage and may be thwarted by conflicting trends. Moreover, it may generate tensions between social objectives and economic goals. This book provides the first comprehensive analysis of these developments and examines new avenues that may be opening for consumer law, focusing on three key areas: financial services, electronic communication and access to justice. Through a systematic analysis of relevant cases, the book traces the development of a human rights dimension in consumer law and details the ramifications that the post-Lisbon legal framework may have on consumer protection and policy. This book concludes by proposing new directions in consumer law, striking a compromise between social and economic demands -- Provided by Publisher La jaquette indique : "Traditionally, consumer law has played an instrumental role in the EU as a tool for market integration. There are now signs in the new EU legal framework and jurisprudence that this may be changing. The Lisbon Treaty contains provisions affecting consumer law and, at the same time, it grants binding legal force to the EU Charter, which in turn adds a fundamental rights dimension to consumer protection. This evolution, however, is still at an early stage and may be thwarted by conflicting trends. Moreover, it may generate tensions between social objectives and economic goals. This book provides the first comprehensive analysis of these developments and examines new avenues that may be opening for consumer law, focusing on three key areas: financial services, electronic communication and access to justice. Through a systematic analysis of relevant cases, the book traces the development of a human rights dimension in consumer law and details the ramifications that the post-Lisbon legal framework may have on consumer protection and policy. This book concludes by proposing new directions in consumer law, striking a compromise between social and economic demands." Exploring The Relationship Between Fundamental Rights And Consumer Law In The Eu, This Book Provides A Comprehensive Analysis Of The Joint Implications Of The Lisbon Treaty And The Charter Of Fundamental Rights. It Examines The Potential Tensions That May Emerge Between Consumer Protection Objectives And Economic, Market-oriented Goals. Introduction -- Consumer Law And The Market -- The Evolution Of Consumer Protection And Human Rights -- A Broader Perspective On Consumer Protection And Human Rights -- Consumer Protection And Financial Contracts -- Electronic Communication, Fundamental Rights Conflicts, And Consumer Participation -- Consumers' Access To Justice And Procedural Rights -- Conclusions. Iris Benöhr. Includes Bibliographical References (pages [217]-235) And Index.