Law, Stephanie --- "The CJEU’s interpretation of the consumer: what significance of judicial cooperation?" [2017] ELECD 760; in Cafaggi, Fabrizio; Law, Stephanie (eds), "Judicial Cooperation in European Private Law" (Edward Elgar Publishing, 2017) 167

Book Title: Judicial Cooperation in European Private Law

Editor(s): Cafaggi, Fabrizio; Law, Stephanie

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781786436689

Section: Chapter 7

Section Title: The CJEU’s interpretation of the consumer: what significance of judicial cooperation?

Author(s): Law, Stephanie

Number of pages: 41

Abstract/Description:

This chapter examines a key concept of national and European private law, from the perspective of the existence and significance of judicial cooperation. Having emerged initially in the nation states – tied to national markets and national cultures and traditions – the consumer has come to constitute one of the key actors in the European integration project; the final consumer is a member of European society,entitled to the protections and opportunities afforded to European citizens and plays a key role in the operation of the internal market, transacting for goods and services both within his or her own, and in other Member States. Indeed, consumer law has traditionally been used as a means of facilitating the internal market. This has been necessary due to the limits of the European Union’s competences to legislate for consumer law. In line with Art.5 TEU, Union action and policy must generally be advanced in a manner compliant with the principles of conferral,proportionalityand subsidiarity.Receiving no mention in the Rome Treaty, consumer interest was acknowledged in the Single European Act of 1987and found explicit recognition as a legislative competence only in the Treaty of Maastricht in 1993;this basis for legislating was cemented in the Treaty of Amsterdam, in its Art.153 (previously, Article 129(a), now Art.169 TFEU), which provided that the Union should ensure a high level of protection via the protection of distinct and identifiable consumer rights. In practice, however, Art.169 has been of limited use;consumer law has rather been based on Art.114 TFEU,which requires the existence of a barrier to trade that affects the functioning of the internal market.Thus, the determination of the Union legislature to legislate for consumer law came also with a political and policy choice to harmonise national laws deemed to constitute barriers to trade. The Union’s harmonisation policy brought together its negative integration competences– much broader in terms of the promotion of the market and exercised already via the CJEU– and its legislative competences; as such, it identified national rules that restricted trade with the aim of protecting consumers but could nevertheless be deemed to be compliant with Treaty rules. This determination eventually led to the discussion of the character of the consumer identity and the scope of consumer legislation, that is to say, in terms of what – if any – discretion should be left to the Member States to determine whether they might provide for or indeed maintain a higher level of consumer protection than that envisaged by the Union. The Union legislature’s resolution as to the degree of discretion to be left to the Member States came to be reflected in the distinction between minimum, maximum and targeted maximum harmonisation. These determinations have had a number of consequences. The choice to harmonise led, initially, to an institutional move away from the courts to the legislature, that is, from negative to positive harmonisation. As a result, EU consumer law – like EU private law, more generally– is famously piecemeal and fragmented, both in character and substance. The body of consumer law-related instruments currently stands at over 15; two further proposals were introduced at the end of 2015and a revision of the consumer acquis is expected to take place over the next two to three years.Across these instruments, there exists no overarching concept of the consumer. Moreover, both on its face (that is, given the choice of Art.114 TFEU as a legal basis) and indeed also substantively, the consumer concept has been seen to be more tightly linked to the facilitation of the internal market at the Union level than to the protection of other values and interests that might be held by the consumer.This has been characterised as reflecting a shift from the protection offered within the nation states in line with notions of social justice to one which focuses on the promotion of the consumer’s economic efficiency in order to stimulate his participation in, and thus the functioning of, the market. While the Union legislature has – in the absence of a solid competency basis – set out a framework of the consumer concept (one which will be set out below), it has left a considerable interpretative task to the CJEU, one which it has engaged via the preliminary reference procedure, and necessarily with the participation of the national courts.