Monday, 29 January 2018

Report on the procedural protection of consumers

The European Commission has published a long-awaited report (see our previous blog posts herehere and here) on the impact of national civil procedure on the protection of consumers under EU law; click here for the press release and the full report. The report has been prepared by a consortium of European universities led by the MPI Luxembourg for Procedural Law. The study, which is based on national reports from the EU Member States as well as an online questionnaire and interviews, evaluates whether and to what extent national procedural laws and practices ensure the effective procedural protection of European consumers. The report clearly illustrates that "procedural law matters" [scroll down for more].

As the report points out (p. 28), the application and enforcement of (substantive) EU consumer law largely takes places at the national level. However, there is no equal or level playing field across the EU, and national courts are facing difficulties in understanding and implementing the case law of the CJEU concerning procedural consumer protection. The main uncertainties and divergences pertain to the concept of a 'consumer' (e.g. how to recognise a 'consumer dispute', especially in case of default), the approach to judicial activism and ex officio control (in 'ordinary' proceedings, appeal, payment order and enforcement proceedings), jurisdiction and arbitration issues (cf. the Brussel Ibis Regulation) and the interfaces between individual and collective actions. 

The report consists of an executive summary, followed by five Chapters: (1) the general structure of procedural consumer protection (different systems and mechanisms for enforcement), (2) access to justice (costs, legal aid and knowledge), (3) consumer actions before national courts ('party disposition' vs. an active court, ex officio application of EU consumer law, different types of procedures), (4) actions for collective redress (injunctive vs. compensatory relief, staying of claims, binding effect), and (5) alternative dispute resolution (scope, voluntary or mandatory nature, judicial review). Each chapter provides a summary of the status quo, identified problems and, finally, proposals, improvements and recommendations. In addition, the Annex contains selected data from the national reports. 

The report finds that (p. 29) it "might be advisable to consider providing for minimum standards of consumer protection in civil proceedings in order to improve consumers’ access to justice and increase legal certainty and transparency in these proceedings" [emphasis added]. It also "appears advisable to clarify and strengthen the role of consumer protection associations when filing individual or collective claims". See in this respect the report on collective redress mechanisms, published simultaneously. 

The Commission has already announced a 'New Deal for Consumers', to further strengthen ways of enforcement and redress for consumers. 

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