Within EU law and many legal systems consumers enjoy a higher level of protection as compared to companies and other firms doing business.
Consumers do in fact enjoy a higher level of protection as compared to companies and other firms doing business. This is because in within a Business to Business (B2B) contract or contract, freedom of contract exists, where both parties to the contract share similar if not the same bargaining power. In B2B contract/context the parties to it are free to negotiate the terms of the contract, with similar or same bargaining power.[1] On the contrary, in a Business to Consumer (B2C) contract/context, the consumer is in weaker position to bargain, especially when purchasing products online for example and merely has to agree to the terms and conditions. It is therefore important to put the consumer on a level playing field and provide more rights for the consumer, as if were not the case then businesses could/would implement unfair practices leaving the consumer without redress. For the previous reasons, EU Law protects consumers to fill that hap/lacuna. Several hard laws in the form of legislation exists to protect the consumer so that unfair dealings would not take place in a contract in a B2C context. For example, in relation to distance selling and a consumer buying items online, even stricter protection is afforded to the consumer as envisaged in 00/31 Electronic commerce, 11/83 Distance contracts. Consumer protection laws exist because consumers who buy “in the dark” have little knowledge about the products end-result until it is delivered to their homes.1[2]Thus, in order to protect the consumer; there exists an obligation on the web-shop to provide the consumer with the possibility to cancel the order. Return the goods or withdraw from the contract within 14 days. The seller acting in the capacity of the web shop is also obliged to provide the buyer/consumer all information inherent to the contract in a plain and intelligible and unambiguous manner.
Directives have been set in place on an EU Level, which set minimum standards for domestic jurisdictions to implement these in their legal systems. Some examples of these directives include 86/653 Commercial Agent, 90/314 Package travel, package holidays package tours, 00/31 Electronic commerce, 11/83 Distance contracts, 99/44 sale of consumer goods and associated guarantees, 93/13 Unfair terms in consumer contracts, 87/102 & 08/48 Consumer credit. Cases based on the directives mentioned include Berliner Kindl v Andreas Siepert, C-208/98, Tarcau v. Banca Comerciala Intesa Romania, C-74/15, Costea, C-110/14, Andrinciuc v Banca Românească, C-186/16. The judgements on the cases mentioned are almost all, if not most based on the minimum standards set to protect the consumer as a result of their weaker position and minimum bargaining power to conclude the contract.
For example, The European Union Commission implemented the Consumer Rights Directive[3](CRD) to boost consumer confidence. Previously, disparities in consumer protection throughout the European Union existed as a result of a maximum harmonisation which entailed that EU Member States governments were allowed to implement varying consumer protection clauses in their national laws. However, this is not the case anymore due to the introduction of the CRD. The directive on unfair contract terms[4] introduces the concept of “good faith” so as to prevent sellers and consumers to circumvent any imbalances of their respective rights and obligations. Terms that are unfair are enshrined in the directive and do not bind any of the parties where the consumers are favoured in the event of ambiguous contract terms. Article 3(1) of the Unfair contract terms directive reads: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.” National authorities of EU member states are required to enforce consumer rights and urge that businesses do not use unfair contract terms practices.
Whereas the CRD must be adopted by EU member states, the Commission's proposal for a Common European Sales Law (CESL)[5]which applies to consumer transactions is an optional legal instrument and Member states may choose to incorporate it into their national laws. The CESL covers business B2C contracts and B2B contracts and was adopted by the European Commission in October 2011. Businesses in the EU Member states may choose for the set of rules stated in the CESL to “co-exist” with their national laws for B2C contracts.
Thus, the Court of Justice of the European Union has concluded “that it is settled case-law that derogations from the rules of European Union law for the protection of consumers must be interpreted strictly.” [6]
[1] E Hall, ‘Cancellation rights in distance-selling contracts for services: exemptions and consumer protection’ [2007] JBL 683 [2] E Hall, ‘Cancellation rights in distance-selling contracts for services: exemptions and consumer protection’ [2007] JBL 684 [3] Directive of the European Parliament and of the Council 2011/83 on consumer rights [2011] (Consumer Rights Directive) OJ L304/64 [4] Council Directive (EC) 93/13 on unfair terms in consumer contracts (Unfair contract terms directive) [1993] OJ L95/2925 [5] Proposal for a regulation of the European Parliament and of the Council 2011/084 on a Common European Sales Law [2011] COM 2011/0635 Final [6] 4 Case C-489/07 Pia Messner v Firma Stefan Krüger [2009] ECR I- 07315, paras 32
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