Thursday, 10 April 2014

(Re)imagining consumer law

What images of the consumer can be discerned in European Union law? And how do these affect the regulation of consumer interests in the EU? These questions formed the starting points for the conference on the 'Image(s) of the "Consumer" in EU law' that was organised in Oxford at the end of March. The papers presented at the conference mapped the various conceptions of the consumer in different fields of European law, including rules on competition, trade marks, consumer credit, financial contracts and free movement of goods and services. Furthermore, speakers addressed the normative questions raised by the images of the consumer that emerged in the descriptions of current law. What I took away from the conference were at least two matters for further thought. 

In the first place,  different conceptions of the consumer (e.g. the average 'rational' consumer, the vulnerable consumer) were related to specific functions of EU law. The idea of a consumer acting in an economically rational manner, for instance, has inspired certain types of regulatory interventions, most famously the introduction of information duties ('a well-informed consumer will make a rational choice'). The image of a weaker consumer, on the other hand, justifies more extensive policing of contract terms ('the consumer needs protection, because there is a real risk that she may be unaware of her rights or encounter difficulty in enforcing them'). Such differentiated approaches have different effects on consumer contracts and, therefore, a further analysis of their impact is called for. Think, for example, of the Court of Justice of the EU's interpretation of the Air Passenger Rights Regulation, which effectively provides an incentive for airlines to pass on costs of higher consumer protection (compensation in case of cancelled or delayed flights) to consumers themselves.

In the second place, the topic of 'ethical consumerism' was taken up by several speakers. What approach does and should EU law adopt in regard to consumption choices having so-called 'negative externalities'? Examples include negative effects of consumption on the environment or on labour conditions for those producing consumer goods for European markets. The question was posed to what extent the market for consumer goods may be seen as a forum for the articulation of political and ethical values, in which consumers would vote through their purchases. From that point of view, could ethical consumerism be included in EU regulatory measures? Furthermore, could the European law on sales be understood to include consumer expectations regarding not only the features of a product but also the process through which the good has been made?

The contributions to the conference are planned to be collected in a joint publication. 

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