Tamas Dezso Czigler Ghent University 21/05/2013

1. HOW TO DEVELOP EU CONSUMER LAW? A snapshot of weaknesses and basic points of a possible future reform Tamas Dezso Czigler Ghent University 21/05/2013

2. ABOUT THE TOPIC • Worked for major law firms like Baker & McKenzie - need for simplified rules, fragmentation costs money • Made the peer review of an article written by Prof. Micklitz (EUI Florence) - Social Justice and Access Justice in EU Private Law • - EU consumer law moves into a fair system? • Stayed at the University of Aberdeen – was asked to move into Scottish private International law instead - Because topic is so „evident”? • Stayed in the US at Columbia and Fordham Universities: - Our basic „values” can be questioned • European Law Institute (Why not? Let’s create another institute... (R. Zimmermann) - Evaluation of existing sources or creating useless new principles?

3. THE MAIN POINTS TO DEVELOP • FRAGMENTATION - Substantive law and PIL must be checked together! • SYSTEM OF REMEDIES - Are we sure we are fair? • Private International law aspects - Rome I and the practice • Why not try other institutions instead? - European consumer office, small claims court, class action, effective procedural rules?

4. FRAGMENTATION Levels • International • - Convention on the International Sale of Goods (CISG) • - Special conventions (eg. contracts of carriage) • EU level: numerous rules • - Directives • - Regulations • Essential need for restructuring consumer law • National provisions, e.g. in Belgium • - Act on Unfair Commercial Practices and Consumer Protection (AMPC) (2010) • - Act on Consumer Credit • - Timeshare Act • - Civil Code

5. FRAGMENTATION Substantive Law – time to unify • - Council Directive 86/653/EEC on to self-employed commercial agents • - Council Directive 93/7/EEC on the return of unlawfully removed cultural objects • - Directive 96/71/EC on the posting of workers • - Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea • - Council Directive 85/374/EEC on liability for defective products • - Council Directive 85/577/EEC on contracts negotiated away from business premises • - Council Directive 87/102/EEC on consumer credits • - Council Directive 93/13/EEC on unfair terms in consumer contracts • - Directive 97/7/EC on contracts. • - Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees • - Directive 2000/31/EC on electronic commerce • - Directive 2008/122/EC on timeshare, long-term holiday product, resale and exchange contracts (new timeshare directive) • - Directive 2005/29/EC on unfair business-to-consumer commercial practices

6. FRAGMENTATION Substantive Law • Directive 2011/83/EU on consumer rights • Firstly: Seven directives Proposal:fourdirectives: • - Directive on unfair terms in consumer contracts • - Directive on distance contracts • - Directive on consumer sale of goods • - Directive on consumer contracts negotiated away from business premises. • Later: consumer sales and unfair terms were cut out, only two directives were built in (+ a few general rules for consumer contracts): • - Directive on distance contracts • - Directive on consumer contracts negotiated away from business premises • Proposal for a regulation on a common European sales law [COM (2011) 0635 final] • - optional tool - parties may choose its application • - general rules of contracting • !!!! MY SUGGESTION: LET’S BUILD THE PRESENT RULES INTOONE SOLE DIRECTIVE!!!!

7. FRAGMENTATION Private international law • FIRST PROBLEM - Rome I regulationAND substantive law directives containing PIL provisions: chaos • SECOND PROBLEM • - CESL: sui generis choice • !!!! MY SUGGESTIONS: • LET’S BUILD ALL THE PRESENT RULES INTOROME I REGULATION • AND • 2) CREATE THE BACKGROUND OF CESL IN ROME I • + • ( 3) optional (jurisdiction): CLEAR THE CONNECTION WITH ARBITRATION (SEE WEST TANKERS) )

8. SYSTEM OF REMEDIES Are we fair enough? • EU • - Repair, price reduction – are they reasonable and useful? • - Canceling – withdrawal periods – is it reasonable? • - Fixed time for warranty • US: - No general, fixed time for warranties - Repair, price reduction generally not applied - Injunction(N/A): court order commanding or preventing an action: Exceptional:if no plain,adequate, and complete remedy is available and danger of an irreparable injury - English Case: Lumley-Wagner case – negativ obl. - Canceling: in case of substantial (essential) breach - Magnusson - Moss Warranty Act (for consumers) • MY SUGGESTION: THINK THROUGH THE COMMON LAW APPROACH

9. PRIVATE INTERNATIONAL LAW Art 6 Rome I regulation cannot be followed by the practice Cross border sales: • In case the business is present in the consumer’s country latter law has to be applied • eg. I buy an internet stick in Germany, but Hungarian rules apply • In case the parties choose a different law, the choice may not have a negative effect at the consumer • MY SUGGESTIONS • UNREALISTIC RULES, WE NEED TO THINK THEM OVER • NEED ROME 0 AS IT WAS SUGGESTED BY MPI HAMBURG

10. NEED FOR NEW INSTITUTIONS Suggestions • EUROPEAN CONSUMER OFFICE - at least with the powers of the US Federal Trade Commission (FTC) - would be better: with power to decide in cross- border consumer law issues - national offices are useless – eg. book from Spain – no money, no book, where to go? • EUROPEAN SMALL CLAIMS COURT • PUNITIVE DAMAGES? • CLASS ACTIONS (COLLECTIVE REDRESS) - EU level: „Commission had not put forward convincing evidence that action was needed at EU level to ensure that victims of unlawful behaviour were compensated” - Belgium: TEST Achats proposed it

11. Thank you for your attention!