Conference on The Future of Consumer Law
London, 25 April 2006
Outline of presentation/still preliminary/should not circulate
Is Consumer Protection Law still needed in 2006?
Thierry BOURGOIGNIE[1]
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Raising the issue of the need for consumer protection law in 2006 calls for an in-depth review of the purpose and objectives of consumer law and policy, thus revisiting the basic considerations that led to the emergence of this new legal discipline in the 60s..
Is what is referred to as consumer law still justified in the context of the current market system and does it continue to address citizens’ concerns and fundamental aspirations?
It is essential to lay out once again the rationale underlying consumer law and policy, the objectives thereof and the principal characteristics of its approach (A). Then the arguments that conclude with the absolute necessity of continuing to develop consumer law in the contemporary context are put forward (B). The conclusion is for a clear call for a new momentum to be given to the discipline by developing several priority fields of action and avenues for further research (C).
A. The rationale of consumer law and policy
1. How to view the position of the consumer on the economic scene
2. Types of considerations put forward to justify the definition of an active policy towards the promotion of consumers’ interests:
· a concern with rectifying the imbalances which characterize the way the market functions: to that end, privileged measures will be combating practices that restrict competition on the marketplace and improving consumer information; still the “contractualist” vision of consumer law and policy prevails;
· social policy considerations going beyond the objective of market performance are held to be equally essential in many consumer protection programs established in the 1960s and 1970s worldwide; the responsive reflexive and collective dimensions of consumer law and policy are highlighted; in particular, the vision of consumer protection policy as merely a by-product of competition policy or, at the regional and international levels, free trade or internal market policy is rejected as being by far too restrictive and limited in scope.
B. The consumer on the contemporary economic scene
Caveat: situating these theoretical propositions explaining the emergence and development of consumer law and policy in the last few decades in the contemporary context is research which remains to be done. Failure to renew the theoretical debate is doubtless one cause of the current stagnation in the field.
In the expectation of the results of such a study, we can here only provide subjective, limited and hence poorly substantiated impressions.
1. The dominant model to date remains a contractualist and individualist one.
· most of the “Acquis” relates to the information of consumers (a soft approach to regulation);
· substantive controls are most often limited to defining abstract norms of behaviour, the indicative effect of which remains weak, and hence preventative effect far from guaranteed; examples of such abstract forms of control are the concepts of unfair terms in consumer contracts, consumer legitimate expectations with regard to safety, the obligation to market only safe products, that of guaranteeing the normal use of a consumer good during a reasonable period, unfair or aggressive trade practices towards consumers, and responsible lending;
· reluctance to admit collective redress mechanisms to handle consumer disputes;
· preference given to opt-in solutions in regulating certain trade practices (Robinson list, cooling-off period);
· certain forms of social deregulation have touched consumer law, as well as other disciplines.
2. The dominant model is based on a corrective rather than preventative approach to conflicts
Illustrations:
· consumer credit
· consumer product safety
· cooling-off periods in consumer contracts.
3. Market imbalances have not disappeared; quite the contrary, contemporary socio-economic conditions tend to reinforce them
The loopholes evident in the current market are certainly as prevalent as when consumer law first emerged. The current consumer market, I particular because of its regional or international dimension, is characterized by even greater deficits, with regard to :
· information
· protection
· safety
· participation/representation
· access to justice
· distributive justice
C. Conditions of a new impetus
Four main avenues for further research and action are identified:
1. Confirming the legitimacy of or granting an unquestioned legal basis to the
Initiatives undertaken on behalf of the consumer in the contemporary socio-economic context:
· in countries which do not yet have one, adopting a normative act, such as a general consumer protection law, confirming the commitment of public authorities to undertake initiatives guaranteeing the promotion of consumers’ interests in the market and assuring them a high level of protection;
· developing a long-term consumer protection policy through elaborating three or five year action plans/programs for consumers;
· introducing in national constitutions, national framework legislation on consumer protection, international treaties, and founding texts of integrated regional entities a measure confirming the recognition of consumers’ fundamental rights and the obligation of public authorities to put them into practice;
· more fundamentally, a study should be done on consumers’ position in the contemporary economic system and the conditions under which they exercise their role as consumers in 2006. This is a matter of updating the reflections of the 1960s that engendered consumer protection policy. To that end, one must raise questions about the nature of current social standards and patterns of consumption, the persistence of traditionally denounced market imbalances and the appearance of new imbalances. The impact of consumer law’s achievements and instruments on distributive justice and democracy should also be evaluated. This study would identify consumers’ new expectations, consumer protection policy’s new issues, priorities and fields of action.
2. Consolidating the gains from consumer legislation
· assessing and updating existing legislation and protective schemes
· preserving the autonomy of consumer law and policy, especially with regard
to contracts law, private law or competition law;
· strengthening the substantive and instrumental coherence of existing consumer
protection law : definition of guiding principles, harmonization of basic
concepts and definitions, “codification” process;
· increasing the visibility of and effective access to consumer law.
3. Promoting a broadening of the domain of consumer protection policy
· all consumer products and services;
· integration into other public policies;
· sustainable consumption: building bridges between consumer policy and environmental protection policy.
4. Internalizing the consequences of globalization and regionalisation
Five proposals are being formulated:
· the internationalization of markets reinforces the imbalances, individual and collective, that affect the consumer’s position, thereby justifying a heightened need to protect his or her interests;
· in the current state of affairs, the reaction of national legislatures, when having to deal with transborder consumer conflicts, has principally consisted of guaranteeing the national consumer that national provisions will be applied by a national judge ;
· while consumer protection is viewed as an imperative requirement likely to justify en exemption from the free trade rules of a regional treaty, this is put under strict conditions of causality, proportionality, substitution and/or necessity;
· greater awareness of the globalization of the consumption process may -hopefully – lead to new consumer behaviour (“responsible consumption”), likely to have a significant impact on consumption and production patterns on a planetary scale;
· globalization of the consumption process calls for global solutions and globally effective acts: stressing the need for a genuine international consumer law that still does not exist.
1
[1] Full Professor, Director of the Groupe de recherche en droit international et comparé de la consommation (GREDICC- Research Group on International and Comparative Consumer Law), Département des sciences juridiques, Faculté de science politique et de droit, Université du Québec à Montréal (UQÀM), Montréal, Canada. Email address: