The constant change of EU consumer law: The real deal or just an illusion?

UDK 366.542 CERIF: S 130, S 155 DOI: 10.51204/Anali_PFBU_22302A Emilia MIŠĆENIĆ, Dr. Iur. (KFU Graz), LL.M. (Saarland)* THE CONSTANT CHANGE OF EU CONSUMER LAW: THE REAL DEAL OR JUST AN ILLUSION? EU consumer law is in a process of constant change. Over the past several decades EU consumer law has gone through many changes, reaffirming the statement by Greek philosopher Heraclitus: the only constant is change (Panta Rhei). This paper emphasizes the transformative nature of EU consumer law and its constant changes. Firstly, the paper addresses the changes in legal grounds and competences, as the roots of EU consumer law. Secondly, it presents the changes of the levels of harmonization and their impact on EU consumer directives and the national laws of the Member States. It continues by observing the impact of the CJEU’s uniform and autonomous interpretation on the national case law of the Member States and consumer law enforcement. In conclusion, the paper accentuates the role of the transparency requirements and information duties in online ‘business-to-consumer’ (B2C) transactions as fundamental aspects affecting the future of EU consumer law. Key words: EU consumer law. – Harmonization. – CJEU. – Consumer protection. – Change. * Associate Professor, Department of European and Private International Law, University of Rijeka, Faculty of Law, Croatia, . 679 E. Mišćenić (str. 679–710) 1. INTRODUCTION EU consumer law is in the process of constant change. Over the past few decades EU consumer law has gone through many changes, reaffirming the statement by the Greek philosopher Heraclitus that the only constant is change (Panta Rhei): from changes in the level of harmonization of EU consumer directives, changes affecting the legal grounds for adoption of these approximation measures, to changes in the CJEU’s case-law interpretation. The development of EU consumer law and policy has experienced various phases, which prove that the change is constant,1 which leads to another key aspect of EU consumer law related to its implementation and enforcement in legal orders of the Member States. It is here that the important changes are taking place. The goal of EU consumer law measures is to harmonize the Member States’ legal rules to the benefit of both internal market and consumer protection. So far, this has been only partially achieved and the Union is still searching for the right solution. The constant changes that are occurring at the EU level occasionally have adverse effects on the legal orders of the Member States, causing legal fragmentation, enforcement issues and legal uncertainty in B2C (business-to-consumer) relationships. Over the years, the effects of the changes in EU consumer law have had various forms: different legal solutions caused by the minimum harmonization, different definitions of important concepts (such as trader and consumer), different withdrawal periods in different Member States, and a variety of other issues related to consumer law enforcement (SchulteNölke, Twigg-Flesner, Ebers 2008). There have been many attempts to improve EU consumer law, through the introduction of maximum and full (targeted) harmonization, as well as through various initiatives and programmes, such as the Review of the Consumer Acquis,2 DCFR (Bar, Clive, Schulte-Nölke 2009), REFIT, Fitness Check, the New Deal for Consumers, and the New Consumer Agenda.3 During the process of writing this paper, 1 The legal scholarship addresses different aspects of change and transformation in EU consumer law. See Micklitz, Twigg-Flesner (forthcoming); Howells, Twigg-Flesner, Wilhelmsson (2018); Stuyck (2013, 385–402). 2 Commission Green Paper on Review of the Consumer Acquis of 8 February 2007, COM (2006) 744 final. 3 European Commission, Evaluating and improving existing laws, REFIT; European Commission, Results of the Fitness Check of consumer and marketing law and of the evaluation of the Consumer Rights Directive; European Commission, A New Deal for Consumers: Commission strengthens EU consumer rights and enforcement; European Commission, Consumer policy – the EU’s new ‘consumer agenda’. 680 Аnali PFB 3/2022 The Constant Change of EU Consumer Law: The Real Deal or Just an Illusion? the European Commission launched yet another important initiative, titled ‘Digital fairness – fitness check on EU consumer law’, questioning three key consumer directives on unfair contract terms, consumer rights and unfair commercial practices.4 All of these initiatives intended or intend to offer better legislative solutions and introduce more effective enforcement of consumer law across the Union. Rather than focusing on in-depth analysis of certain specific issue or concept of EU consumer law, this paper emphasizes the transformative nature of EU consumer law and its constant changes. EU consumer law is observed as it is, but from a different angle, and an overview of the process of changes that started long ago is provided. In order to do so, the paper follows a logical order of firstly addressing the changes affecting the very roots of EU consumer law, i.e., its legal grounds. Secondly, it presents the changes affecting EU consumer directives that are founded on these legal grounds, and thirdly it observes the changes resulting from directives’ transposition into the laws of the Member States. The paper continues with an analysis of the CJEU case law offering uniform and autonomous interpretation of EU consumer law and its impact on national jurisprudence. In conclusion, the paper focuses on the role of the transparency requirements and information duties in online B2C transactions, as key aspects for the future development of the EU consumer law. 2. THE LEGAL GROUNDS OF EU CONSUMER LAW Initially there was no recognition and only incidental mention of consumer protection in the provisions on agricultural and competition policies of the Treaty of Rome.5 Today, consumer protection presents one of the main EU policies. The consumer protection requirements are ‘taken into account in defining and implementing other Union policies and activities’ (Art. 12 TFEU).6 Under Art. 38 of the EU Charter of Fundamental Rights, the Union policies ‘ensure a high level of consumer protection’.7 However, at the time consumer protection and B2C relationships were not in the sights of EU law, 4 European Commission, Digital fairness – fitness check on EU consumer law, 2022. 5 Treaty Establishing the European Economic Community, 25 March 1957, not published in OJ. 6 Treaty on the Functioning of the European Union (consolidated) [2016] OJ C 202/1. 7 Charter of Fundamental Rights of the European Union [2016] OJ C 202/391. 681 E. Mišćenić (str. 679–710) which focused on other barriers to trade (Schmidt-Kessel 2016, 280). In 1975 the consumer protection and fundamental consumer rights were included in the EEC Resolution on a Preliminary Programme for a Consumer Protection and Information Policy8 and in 1978 th (...truncated)