To choose or not to choose?

Consumers may like to think that they have choices: what to buy, where to buy, with whom to buy. One area in which consumers do not have a choice, however, is that which concerns their rights. Even if consumer law only lays down minimum rules for consumer protection and otherwise leaves it to the parties to decide upon the terms of their contract, it is mostly not the consumer who makes that decision: his counterparty, the seller or trader does. Standard terms of contract have become... well, the standard.

It does not have to be like that. In an article published in the online Erasmus Law Review, which can be found here, Gerhard Wagner suggests a new way in which consumer law could ensure legal certainty whilst at the same time allowing more room for flexibility. He suggests that the usefulness of mandatory rules is negligible as long as sufficient court control of standard terms exists. Where court control is not sufficient, flexibility could be created by introducing several 'options' that can be used instead of mandatory law.

This discussion is relevant and very timely: whilst Wagner discusses the proposal for a Consumer Rights Directive, the same issues are now at stake in the consultation on the Commission's Green Paper for European Contract Law. The 'optional instrument' proposed in the Green Paper can create an alternative to national laws. Whilst this can create more 'options' for businesses and consumers to trade in the EU internal market, I believe we have to be careful to be too optimistic. For who makes the choice between these options: is that not still the business deciding under which terms and conditions to offer its products?