Brexit and European Consumer Law: Now What?

On 24 June, a little over a week ago, the UK voted to leave the EU. This historical move has ignited a lot of feelings (including on our very own blog), and it has been analyzed continuously since its occurence. So far, the analysis has mainly focused on political (what policies have pushed/convinced voters to choose for this outcome and how that affects the unity of the European Union), the constitutional (devolution and Brexit), or the financial aspects (stock-market instability). Insecurity is bound to govern the upcoming period, as no one fully understands and/or is able to predict how this situation will play out. And as negotiations between the UK and the EU have not even started, it is difficult to speculate on even the general direction to be taken by the UK; with David Cameron stepping down, the British electorate dealing with segregation and confusion, the future of the relationship between the EU and the UK is left to our imagination.

But what does this actually mean for private law? In this brief contribution, I will try to make a case for how harmonized UK law already is, and how it has already been succesfully integrating European standards of consumer contract law into its national sphere. Given that legal convergence in this particular field has been the topic of my PhD thesis (Legal Convergence in Consumer Contract Law – A Comparative and Numerical Approach, forthcoming 2016), I will do so by referring to a measurement tool developed in my study: the Convergence Index. This Index has been built on the basis of earlier work on numerical comparative law by Mathias Siems, [1] as well as the OECD Manual on Composite Indicators.

 

Screen Shot 2016-07-04 at 01.53.20

As an aggregate measurement tool, the Convergence Index is the sum of multiple individual indicators. The strength of coding such an index stems from the fact that it has the power to contribute to the country comparison and help illustrate a complex process like harmonization. The Convergence Index thus offers a model to measure and visualise the level of convergence.

The UK joined the EU in 1973, in the first enlargement wave, totalling around four decades of European integration to date. Among others, this integration has also had the nature of legal approximation, and contract law has been one of the fields it took place in. European instruments on consumer law started being adopted in the 1980s, and the Product Liability Directive of 1985 and the Doorstep Selling Directive are only a couple of examples of legislative developments that paved the way towards harmonized rules applicable to cross-border transactions.[2] More recent instruments include: the Consumer Sales Directive,[3] the Directive on Product Safety,[4] the Credit Agreement Directive,[5] and the Consumer Rights Directive.[6]

All of these instruments (and many more) have been transposed by the UK into its national legal system, as part of its obligations under the TFEU, using special Regulations that would often be almost copy-paste versions of the Directives themselves (e.g. The Consumer Protection (Cancellation of Contracts concluded away from business premises) Regulations 1987 transposing the Doorstep Selling Directive).

It is true that there have been instances where negotiating the content of these instruments has proven particularly problematic for the UK – a telling example is reflected in the preparatory works of the Unfair Contract Terms Directive.[7] It is also true that at times, transposing Regulations might have led to separate regimes that did not get enough traction to be applied in place of the default UK contract law – see the case with remedies on consumer sales and the specific performance-orientation of the primary remedies prescribed by the Consumer Sales Directive.[8] All in all, it seems that the UK has been in a constant struggle with the scope and content of European contract law initatives, which struggle has been at first sight ‘irritating’ the national legal order.[9] But has irritation been everything there is to European consumer law in the UK? By no means.

The 2009 decision in OFT v Foxtons sheds light on how national judges have embraced standards set by the European legislator:

 

The UTCCR implement the Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. In those circumstances, in accordance with the proper principles of construction, the UTCCR have to be interpreted in the light of the Directive, and it is convenient, if not necessary, to set out the terms of the Directive as well as the UTCCR. I shall set out the terms of both because the authorities refer to both. It was, however, accepted that there was no difference in their overall terms and effect.[10]

 

The same judgment refers to a ruling in Director-General of Fair Trading v First National Bank plc, and shows how judges themselves try to overcome what only appears to be a clash between the European notion of good faith and the national resilience to such concept:

The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly, and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or consciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British Lawyers. It looks to good standards of commercial morality and practice.[11]

It might be said that the cases above are only a handful of examples and they do not accurately reflect the divide between the UK (as a legal system allegedly unfrienfly to European influences) and European standards of consumer protection. However, to complement this view, according to my own research, when dealing with the legislative transposition phase, the UK has scored quite high on the factors reflected in the Convergence Index (see picture 1 above to visualize the 13 variables included in the Index):

Screen Shot 2016-07-04 at 02.27.01

This Google Motion Chart does not follow a time pattern, but it is actually based on a time sequence reflecting five different directives: Doorstep Selling, Unfair Terms, Distance Selling, Consumer Sales and Unfair Commercial Practices. Even for the Unfair Contract Terms Directive the UK has the second highest score out of the seven MS included in the study (6/13), and it achieved the highest score (and thus the highest convergence) was reached upon the transposition of the Distance Selling Directive (8/13). For the Unfair Commercial Practices Directive, the UK scored second highest once more (9/13).

Since I did not go into the details regarding the actual values of the UK’s score and what they reflect, I will dedicate a separate post to the methodology I have used to compile the Convergence Index. The full study will be available shortly before my PhD defense (4 October 2016).

To conclude this succint analysis, the UK has been adapting to European law in much stronger ways than apparent ‘legal irritants’ might allow us to believe. Will the UK try to undo this convergence after the dust settles? It seems highly unlikely, given that UK consumer law has already undergone a recent reform in the shape of the Consumer Rights Act 2015, so it is safe to assume that such a policy shift would be highly improbable. So what then? Many academic voices (including MEPLI’s own director, Jan Smits) have argued time and time again that the ever-enlarged scope of intervention of the European Union in the area of private law raises legitimacy issues, so it is understandable for Member States to want to retain some competence in such matters.[12] However, one thing is certain: European consumer protection, whether desirable or not, is very high, and UK law has taken over this standard and nurtured it in recent times. This is the same UK that prides itself to have historical business-friendly rules (#caveatemptor) and courts, and to push economic/market interests over the remedy of unequal bargaining power. Since the UK and the EU will continue to have strong trade ties, it makes no sense to change the current regime; but at the same time, if no meaningful national competence is gained, it means that in the light of a specific sector such as consumer protection, the UK is not necessarily better off outside of the EU. And so now what? Well, good question.

 

 

[1]             Mathias M. Siems, ‘Numerical Comparative Law: Do We Need Statistical Evidence in Law in Order to Reduce Complexity’, 13 Cardozo Journal of International and Comparative Law 2005.

[2]             The Product Liability Directive 85/374/EEC or the Doorstep Selling Directive 85/577/EEC.

[3]             Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, Official Journal L 171 of 07 July 1999.

[4]             Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety, Official Journal L 11/4 of 15 January 2002.

[5]           Directive 2008/48/EC on credit agreements for consumers, Official Journal L 133/66 of 22 May 2008.

[6]             Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, Official Journal L 304/64 of 22 November 2011.

[7]             Mário Tenreiro, ‘The Community Directive on Unfair Terms and National Legal Systems – The Principle of Good Faith and Remedies for Unfair Terms’, 3 European Review of Private Law 1995.

[8]            Christian Twigg-Flesner, ‘The EC Consumer Sales Directive: A Lot Still to Do’, 8 Canterbury Law Review 2001.

[9]            Gunter Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’, 61(1) The Modern Law Review 1998.

[10]             The Office of Fair Trading v Foxtons Limited [2009] EWHC 1681 (Ch).

[11]             Director-General of Fair Trading v First National Bank plc [2002] 1 AC 481.

[12]             Jan Smits, ‘Full Harmonisation of Consumer Law? A Critique of the Draft Directive on Consumer Rights’, 18 European Review of Private Law 2010.

 

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