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Consumer Protection

Selected e-articles

Abstract: Directive 2013/11/EU, of 21 May 2013, applies to domestic and cross-border out-of-court dispute resolution procedures relating to contractual obligations arising from sale or service contracts between traders established in the Union and consumers resident in the Union through the intervention of an Alternative Dispute Resolution (ADR) entity which proposes or imposes a solution, or which brings the parties together to facilitate an amicable solution. In this context, the Portuguese legislator established the Consumer Protection Law, in 2019, under which small consumer claims are subject to compulsory arbitration or mediation when, at the consumer’s express option, they are submitted for the consideration of an arbitration tribunal at one of the legally authorized consumer arbitration centres. This article sets out to examine these arrangements, starting with an analysis of their conformity to European Union law. We will then look at the solutions adopted by other Member States of the Union for out-of-court settlement of  consumer disputes. In particular, in French, German, Italian and Spanish law. Lastly, after examining the main features of the Portuguese system, it is concluded that it offers an original solution, and consideration is given to the advantages of its possible adoption in the legislation of other Member States.

Abstract: This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Abstract: In recent years, European regulators have debated restricting the time an online tracker can track a user to protect consumer privacy better. Despite the significance of these debates, there has been a noticeable absence of any comprehensive cost-benefit analysis. This article fills this gap on the cost side by suggesting an approach to estimate the economic consequences of lifetime restrictions on cookies for publishers. The empirical study on cookies of 54,127 users who received ∼128 million ad impressions over ∼2.5 years yields an average cookie lifetime of 279 days, with an average value of €2.52 per cookie. Only ∼13 % of all cookies increase their daily value over time, but their average value is about four times larger than the average value of all cookies. Restricting cookies’ lifetime to one year (two years) could potentially decrease their lifetime value by ∼25 % (∼19 %), which represents a potential decrease in the value of all cookies of ∼9 % (∼5%). Most cookies, however, would not be affected by lifetime restrictions of 12 or 24 months as 72 % (85 %) of the users delete their cookies within 12 (24) months. In light of the €10.60 billion cookie-based display ad revenue in Europe, such restrictions would endanger €904 million (€576 million) annually, equivalent to €2.08 (€1.33) per EU internet user. The article discusses these results' marketing strategy challenges and opportunities for advertisers and publishers.

Abstract: Consumer protection is an integral part of the current phase of the European integration project. However, eclipsed by market-building, the image of European consumers is homogeneously defined by individual economic interests against a uniform metric. This article proposes the alternative image of an “embedded consumer to align with the imaginary of the constitutional person under primary EU law, especially the Charter of Fundamental Rights of the European Union. Under the Charter, a constitutional person is fundamentally shaped and significantly enabled by their communities and thus bears “duties and responsibilities” towards the community. This obligation does not always amount to individual legal responsibility as individuals are inevitably vulnerable (when social structures lack fairness) and rely on social institutions to build up their resilience. Accordingly, the embedded consumer is also socially responsible and humanly vulnerable. This entails that a responsible consumer policy should move beyond individual responsibilisation and involve public obligations and corporate responsibilities to create a conducive framework for sustainable and responsible consumption. A responsible framework is a balanced one, on the one hand, which consciously navigates the conflicts between the various rights of the consumer as a person and between the consumer’s rights and the community’s interests. On the other hand, it also takes consumer vulnerability as the starting point for consumer policy. Such an “embedded consumer” is not merely futuristic but represents a transformation underway in the EU. EU consumer law and policy should be informed by the embedded consumer and the collective vision it reflects.

Abstract: E-commerce providers increasingly rely on recommender systems to curate online consumption. EU law requirements for such recommender systems were initially introduced in privacy legislation, but recent years have seen several new provisions on this topic in consumer protection legislation and platform regulation. However, the latter regulations are limited to online intermediaries and, just like privacy legislation, they merely require businesses that use recommender systems to provide transparency on this to consumers. Transparency is not a solution for the challenges that recommender systems pose because it is difficult to achieve (especially towards consumers) and is not enough to allow users to control recommendations. Furthermore, most of these tools rely on private enforcement, which has proved to be less than effective.

Abstract: According to the Damages Directive victims of infringements of competition law are entitled to full compensation. To achieve this goal overcharges, passing-on, and volume effects should play a role in the calculation of damages (for any purchaser who is not yet the final consumer). Whereas the Damages Directive promotes the passing-on defence for the defendants, it does not regulate volume effects in depth. The computation of these effects requires information on counterfactual prices and quantities. Since this information cannot be observed, the size of the volume effect tends to be uncertain. This paper discusses policy-options that aspire to bring compensation closer to full compensation, given uncertainty about the size of the volume effect. Based on the maximin-principle, a principle for decision-making under uncertainty, not allowing a passing-on defence appears to be an attractive option since this may lead to the minimization of the maximum gap between actual and full compensation.

Abstract: EU law is not entirely self-sufficient or autonomous and it heavily depends on the substantive and procedural rules of its Member States. This interaction becomes particularly evident when it comes to remedies and procedures, where EU law and national legal systems intersect in various ways. It seems increasingly evident that, especially in the attempt to ensure effective consumer protection within the scope of Directive 93/13/EEC, the balance of the relationship between the principle of national procedural autonomy and EU legislation has tilted in favor of the latter. Indeed, in the light of an organic analysis of the ECJ’s case law, it appears crystal clear that national procedural autonomy has undergone a gradual erosion, since the ECJ has imposed a growing level of scrutiny over national rules. This approach is certainly grounded on the need of ensuring the full implementation of the principles of equivalence and effectiveness in terms of judicial  protection. Consequently, domestic procedural rules are facing increasing challenges in maintaining their traditional scope of application, as they must now accommodate the broader objectives of EU law.

Abstract: This article first sets out some views on the objectives and the functions of Directive 93/13/ EEC on Unfair Contract Terms (UCTD). This is then compared with the way in which the UCTD is applied, using selected examples from the case law of the ECJ, in particular characteristic judgments on the transparency of terms, the fairness of terms and the effect of the unfairness of individual terms on the remainder of the contract. The aim is to outline the general function of the UCTD in the system of contract law, consumer protection and civil justice, as well as the underlying notion of the role of the judge. The core thesis is that the main objective of the UCTD, from a regulatory point of view, is to create a judicial or administrative fairness corrective to the unilateral power to draft contractual terms that private law grants to businesses towards consumers in the formation of a contract.

Abstract: This article analyses the challenges that online marketplaces and e-commerce pose to traditional product liability doctrines. It uses a comparative perspective to examine whether an online platform can be liable to a consumer for a defective product purchased on its platform, and the adaption of product liability law to this challenge in a series of jurisdictions. It reflects on the role of litigation and regulation, focusing on Europe and the United States, and considers reform in a number of jurisdictions in this area. It concludes with proposals for increasing the accountability of online marketplaces for products sold on their websites.

Abstract: The scope of application of the Unfair Contract Terms Directive (UCTD) is defined as ‘delicate compromises between the legal traditions of different Member States’. These compromises are the results of the alignment of various national models of regulation of the unfairness control of contract terms based on different approaches (market oriented approach or consumer/weaker-party-protection approach). In that sense, the scope of application of the UCTD is the reflection of some kind of balancing between various goals it was meant to achieve – the establishment and the functioning of the internal market based on free competition, private autonomy, freedom of contracting and ensuring, at the same time, a high level of consumer protection when entering into consumer contracts. However, a question arises whether all those compromises, negotiated over thirty years ago, when the rules on the scope of application of the UCTD were drafted, could even today be regarded as the optimum balance between the values the UCTD was meant to protect. Therefore, it is not at all surprising that the European Court of Justice (ECJ) has up to now been in situations, in as many as several hundreds of cases, to interpret the UCTD, including its provisions on the scope of application. The text analyses the current trends in the interpretations of the scope of application of the UCTD in the case law of the ECJ. The main goal has been to highlight the arguments by which the Court has interpreted the Directive’s scope of application and to see whether there are any new tendencies in the case law of the ECJ when interpreting the UCTD by showing that, in practice, both its personal and material scopes of application have changed, and if that is the case, in what direction these changes are going.

Abstract: How was the European Union's privacy regime built? Drawing on regime theory and carrying out qualitative document analysis, we present the evolution of the privacy regime across the three decades from the 1995 European Data Protection Directive to the 2016 General Data Protection Regulation, the 2022 Data Governance Act and finally the 2022 Digital Markets package. Our analysis focuses on the European Commission and suggests that the privacy regime emerged out of the seemingly conflicting interplay between the (digital) single market whose power draws on the network effects of expanding data resources and concerns for personal privacy that seek limiting data gathering itself. Contrary to expectations, potential tensions between competition law and consumer protection have not hindered or decelerated the formation of the regulatory regime. In fact, these tensions have proven to be surprisingly productive.

Abstract: Commercial practices that exploit consumer behavioural biases (behavioural exploitation) are an increasingly prevalent issue in online choice architectures. EU policymakers have started to expressly regulate such practices. What remains unclear about this type of regulation is when an online choice architecture exploits biased consumers. What is the legal meaning and significance of exploitation in the digital environment? Even though the concept of exploitation is frequently used in scholarship concerning behavioural exploitation such as “dark patterns”, it is rarely defined. The concept’s normativity is mostly ignored, remains underdeveloped, and lacks solid foundations. This Article aims to close this gap by developing a theory of exploitation for (behavioural) consumer law in the EU that applies to online choice architectures and unfair commercial practices in general. The Article eschews welfare analysis and instead relies on the philosophical discourse on exploitation theory. Even though this discourse is mostly ignored by the literature, the Article submits that this analytical framework fits better with the existing goals and scheme of EU consumer law compared to an approach to legal analysis that is driven by promoting consumer welfare through market efficiency. Ultimately, the Article defends the autonomy theory of exploitation and contends that regulating behavioural exploitation in online choice architectures means regulating for autonomy.

Abstract: European law is having an increasing impact on private enforcement of consumer law in the Member States. Firstly, the European principles of equivalence and effectiveness acted as levers for the CJEU to strengthen the obligation imposed on national courts to apply European consumer law of their own motion (‘ex officio control’). The scope and content of this evolution in case law also impacts the functioning of public enforcement mechanisms. Secondly, the European threefold obligation that national sanctions have to be effective, proportionate and dissuasive has been further developed by the CJEU, especially in the field of  consumer protection. These enforcement principles interplay and have a bearing on both private and public enforcement. Thirdly, the European legislator recently introduced new enforcement mechanisms for consumer law (e.g., Omnibus Directive, Consumer Protection and Cooperation (CPC)-regulation, Directive on representative actions) which show a new emphasis on public enforcement especially in the context of the digitalization of the market.

Abstract: The argument often goes that trade liberalization, amongst other things, leads to lower prices, better quality products, and increased choice for consumers. Yet, in recent years, consumer organizations have renewed demands for the prioritization of consumers in international trade governance frameworks. This article considers these demands and argues that they mask two important points. First, they highlight a normative quest to redefine the aims of trade liberalization. Second, they expose a possible dissatisfaction with the current international consumer protection regime. Against this background, the article concludes that these two underlying points should inform any policy and academic engagements with the demands highlighted.

Abstract: Presently, most business-to-consumer interaction uses consumer profiling to elaborate and deliver personalized products and services. It has been observed that these practices can be welfare-enhancing if properly regulated. At the same time, risks related to their abuses are present and significant, and it is no surprise that in recent times, personalization has found itself at the centre of the scholarly and regulatory debate. Within currently existing and forthcoming regulations, a common perspective can be found: given the capacity of microtargeting to potentially undermine consumers’ autonomy, the success of the regulatory intervention depends primarily on people being aware of the personality dimension being targeted. Yet, existing disclosures are based on an individualized format, focusing solely on the relationship between the professional operator and its counterparty; this approach operates in contrast to sociological studies that consider interaction and observation of peers to be essential components of decision making. A consideration of this “relational dimension” of decision making is missing both in consumer protection and in the debate on personalization. This article defends that consumers’ awareness and understanding of personalization and its consequences could be improved significantly if information was to be offered according to a relational format; accordingly, it reports the results of a study conducted in the streaming service market, showing that when information is presented in a relational format, people’s knowledge and awareness about profiling and microtargeting are significantly increased. The article further claims the potential of relational disclosure as a general paradigm for advancing consumer protection.

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