A Cross-Border-Only Regulation for Consumer Transactions in the EU: A Fresh Approach to EU Consumer Law PDF
Preview A Cross-Border-Only Regulation for Consumer Transactions in the EU: A Fresh Approach to EU Consumer Law
SpringerBriefs in Business For further volumes: http://www.springer.com/series/8860 Christian Twigg-Flesner A Cross-Border-Only Regulation for Consumer Transactions in the EU A Fresh Approach to EU Consumer Law Christian Twigg-Flesner Law School University of Hull UK c.twigg-fl [email protected] ISSN 2191-5482 e-ISSN 2191-5490 ISBN 978-1-4614-2046-0 e-ISBN 978-1-4614-2047-7 DOI 10.1007/978-1-4614-2047-7 Springer New York Dordrecht Heidelberg London Library of Congress Control Number: 2011941606 © Christian Twigg-Flesner, 2012 All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identifi ed as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) This book is dedicated to Paul Kilford, a friend extraordinaire. Preface Over recent years, a signifi cant proportion of my research work has been concerned with the desirability of reforming both domestic and European consumer law. In the European context, the main focus was on the E C Consumer Law Compendium and Database project, directed by Hans Schulte-Nölke (Osnabrück), which was a large- scale analysis of how a number of EU Consumer Law directives had been trans- posed into the national laws of the 27 EU Member States. This work, and my interest in the debate about the Europeanisation of Contract Law, shaped the idea which is the subject of this short book, which is the suggestion that the future development of EU Consumer Law should concentrate on cross-border transactions. To some, this may seem like a very odd idea, but I hope that the discussion in this book might persuade both academic colleagues and policymakers to give this idea some thought—and hopefully prior to any fi nal decisions being taken on an “optional instrument” on European Contract Law. This book draws on some of my earlier published work, notably articles pub- lished in the J ournal of Consumer Policy1 and the E uropean Review of Contract Law . 2 It brings together ideas from those two papers, but expands on both, and also modifi es some of the suggestions I have made previously as my thinking on this topic has developed further. I have also sought to provide some general background to assist a reader unfamiliar with the wider context, but have tried to be concise so as to maintain the focus on the specifi c argument I am making in this book. I am grateful to a number of colleagues who have offered their comments on my ideas (whilst not necessarily agreeing with them), notably Roger Brownsword (King’s College London), Hugh Beale (Warwick) and Geraint Howells (Manchester), 1 C . Twigg-Flesner, “Time to do the Job Properly – the Case for a New Approach to EU Consumer Legislation” (2010) 33(4) J ournal of Consumer Policy 355–375. 2 C. Twigg-Flesner, “‘Good-Bye Harmonization by Directives, Hello Cross-Border only Regulation?’ – A way forward for EU Consumer Contract Law” (2011) 7 E uropean Review of Contract Law 235–256. vii viii Preface as well as colleagues from SECOLA who commented on my paper at the Leuven conference in January 2011. Thanks are also due to colleagues here at Hull for a supportive research environment. I am particularly grateful that this book was signed for the new SpringerBrief series, because I had realised that I needed to say more than I could in the two papers previously mentioned, but did not see the need to expand my ideas into a full-length monograph. Thanks to Nick Philipson at Springer for taking on this project and for his never-ending patience as completion of the manuscript was delayed for various reasons, most of which were down to my desire to await immi- nent developments at the European level. However, some were personal reasons, and I would have found these consider- ably more diffi cult, if not impossible, to deal with, had it not been for the support and friendship of Paul Kilford. It is to him I dedicate this book with enormous gratitude. Hull, UK Christian Twigg-Flesner Abstract For almost three decades, the European Union (EU) has adopted measures to regulate consumer transactions within the internal market created by the EU Treaties. Hitherto, these measures were Directives which were adopted with the intention of harmonising various aspects of national consumer laws. This was done because of the perception that variations in consumer laws would deter both traders and con- sumers from entering into contracts with parties from another Member State. Directives require changes to the national laws of the Member States, and the inten- tion was to create a level playing fi eld for consumer transactions across the EU. However, this objective was not fully realised, because Directives generally only required a minimum level of protection, with Member States free to exceed this if they so wished. Also, the requirement to adopt national legislation to give effect to a Directive meant that there were still diverse national laws in existence even after the attempted harmonisation. Having reviewed the effectiveness of the harmonisa- tion efforts to date, the European Commission proposed new legislation which would have resulted in full harmonisation of areas of consumer law, but ultimately, Member States were unwilling to support widespread harmonisation of this kind. Starting from the drawbacks of the harmonisation approach to date, this B rief develops an argument for an entirely different approach to the creation of EU Consumer Law. It fi rst considers the shortcomings of harmonisation by Directives and argues in favour of a shift towards using a Regulation, which would be appli- cable directly without requiring national legislation to be adopted by the Member States to be effective. It then proposes to limit such a Regulation to dealing with cross-border transactions only, leaving the regulation of domestic transactions to the national laws of the Member States. This would result in a fundamental recasting of the approach to EU Consumer Law, but one, it is argued, which is more likely to result in a set of legal rules which will facilitate cross-border transactions. The Brief considers in detail how the concept of “cross-border transaction” should be under- stood and also examines the constitutional context of the EU Treaties which, it is submitted, grants the EU much greater leeway for legislating for cross-border-only transactions than it does for the harmonisation of national laws to affect all con- sumer transactions. ix
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