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The Consumer Rights Act 2015 – a bastion of European consumer rights?

Published online by Cambridge University Press:  02 January 2018

Paula Giliker
Paula Giliker*
Affiliation:
University of Bristol
*
Paula Giliker, Professor of Comparative Law, University of Bristol Law School, Wills Memorial Building, Queens Road, Clifton, Bristol BS8 1RJ, UK. Email: paula.giliker@bristol.ac.uk
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Abstract

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 1 , March 2017 , pp. 78 - 102
Copyright
Copyright © Society of Legal Scholars 2017

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Footnotes

*

The author would like to thank Lucinda Miller, Albert Sanchez Graells, Keith Stanton, Keith Syrett and the two anonymous Legal Studies reviewers for their helpful suggestions in the preparation of this paper. Any errors remain those of the author alone.

References

1. Jo Swinson (then Consumer Minister) ‘Biggest overhaul of consumer rights in a generation’ Press Release 27 March 2015.

2. This date applies to the main provisions of the Act, although some provisions were introduced at an earlier date. The Act applies to the UK (consumer rights are a reserved matter and not devolved to Scotland, Wales or Northern Ireland). See, generally, Samuels, A ‘The Consumer Rights Act 2015’ [2015] J Bus L 159 Google Scholar.

3. See http://www.which.co.uk/consumer-rights/regulation/consumer-rights-act (accessed 16 September 2016).

4. The Act further introduces easier routes for consumers and small and medium-sized enterprises (‘SMEs’) to challenge anti-competitive behaviour through the Competition Appeal Tribunal (‘CAT’). These measures will not be dealt with in this paper, although it should be noted that UK competition law is now heavily influenced by EU law: see Jones, A and Sufrin, B EU Competition Law: Text, Cases and Materials (Oxford: Oxford University Press, 6th edn, 2016) ch 13CrossRefGoogle Scholar; Whish, R and Bailey, D Competition Law (Oxford: Oxford University Press, 8th edn, 2015) pp 77 ffCrossRefGoogle Scholar. See, in particular, Council Regulation 1/2003.

5. As acknowledged by the government in its Explanatory Notes to the Act, at [5].

6. See Schulte-Nölke, H, Twigg-Flesner, C and Ebers, M (eds) EC Consumer Law Compendium (Munich: Sellier, 2008)Google Scholar. Under Art 288(3) TFEU, the Member State has an obligation to transpose EU directives into the national legal system, although the choice of form and method of transposition is left to the national authorities.

7. See the UK government's Guiding Principles for EU Legislation, at 5(c).

8. 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; OJ L 171 (7 July 1999) pp 12–16.

9. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; OJ L 095 (21 April 1993) pp 29–34.

10. See eg Twigg-Flesner, C and Bradgate, R ‘The EC Directive on certain aspects of the sale of consumer goods and associated guarantees – all talk and no do?’ Web JCLI 2000(2) (http://www.bailii.org/uk/other/journals/WebJCLI/2000/issue2/flesner2.html, accessed 16 September 2016)Google Scholar.

11. Miller, L ‘After the Unfair Contract Terms Directive: recent European Directives and English law’ (2007) 1 Eur Rev Cont L 88 at 91 CrossRefGoogle Scholar.

12. See Pt 5A, Sale of Goods Act 1979 and similar provisions under Pt 1B of the Supply of Goods and Services Act 1982. See Willett, C, Morgan-Taylor, M and Naidoo, A ‘The Sale and Supply of Goods to Consumers Regulations’ [2004] J Bus L 94 Google Scholar.

13. Notably Art 34 TFEU. See Art 8(2), CSD and, generally, Prechal, S Directives in EC Law (Oxford: Oxford University Press, 2nd rev edn, 2005) ch 5Google Scholar.

14. The Report of the European Commission on the implementation of the CSD, for example, found ‘significant diversity between national laws as a result of the use of the minimum clause and the various regulatory options provided by the Directive’: Commission Communication on the implementation of Directive 1999/44, COM (2007) 210, 24 April 2007, at [12].

15. Davidson Review (London: HM Treasury, November 2006). See also Howells, G and Twigg-Flesner, C ‘Consolidation and simplification of UK consumer law’ (London: Department for Business, Innovation & Skills (BIS), 2010)Google Scholar. BIS consulted from July to October 2012 on proposals to clarify consumer rights in goods, services and digital content: Enhancing Consumer Confidence by Clarifying Consumer Law (London: BIS, 2012)Google Scholar.

16. See also Law Commission Report No 317/Scottish Law Commission No 216 Consumer Remedies for Faulty Goods (November 2009).

17. Article 8, UTD.

18. See also Law Commission Report No 292/Scottish Law Commission Report No 199 Unfair Terms in Contracts (2005).

19. Explanatory Notes to Act, at [5]–[18].

20. In addition, the Act implements some provisions (in respect of enforcement) of: Regulation (EC) No 2006/2004 of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws; Regulation (EC) No 765/2008 of the European Parliament and of the Council setting out the requirements for accreditation and market surveillance relating to the marketing of products; Directive 2001/95/EC of the European Parliament and of the Council on general product safety; and Directive 98/27/EC of the European Parliament and of the Council on injunctions for the protection of consumers’ interests.

21. 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 and repealing Council Directive 85/577/EEC and Directive 97/7/EC; OJ L 304/64 (22 November 2011). On the difficulties arising from not including the CRD within this consolidating Act, see Giliker, P ‘The transposition of the Consumer Rights Directive into UK law: implementing a maximum harmonization directive’ (2015) 23 Eur Rev Private L 5 Google Scholar.

22. The Consumer Contracts (Amendment) Regulations 2015/1629 amend and revoke earlier legislation that had introduced these measures into UK law.

23. 2012/3110.

24. 2013/3134.

25. Explanatory Notes to the CRA, at [13].

26. See also s 59 CRA (interpretation).

27. Note that s 2(8) sets out the definition of ‘goods’, which does derive from Art 2(3) of the CRD. The definition of digital content in s 2(9) is the same as the definition in the CRD (Art 2(11)). See also s 5, which defines ‘sales contracts’, which is consistent with the category of ‘sales contract’ under the CRD.

28. Explanatory Notes to Act, at [34]. One might query whether this is an adequate explanation.

29. See s 76 CRA (interpretation of Pt 2), notably s 76(2).

30. Section 2(7) states that ‘business’ includes the activities of any government department or local or public authority.

31. Article 2(2) CRD: ‘“trader” means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive’.

32. [1988] 1 WLR 321. McKendrick notes, however, that the decision was ‘a surprising one’ and, although followed in Feldaroll Foundry plc v Hermes Leasing (London) Ltd [2004] EWCA Civ 747, has been subject to a considerable degree of criticism: McKendrick, E Contract Law: Text, Cases and Materials (Oxford: Oxford University Press, 6th edn, 2014) p 435 Google Scholar.

33. Clarified as a natural person in the Explanatory Notes, at [36].

34. CSD Art 1.2(a): ‘any natural person who, in the contracts covered by this Directive, is acting for purposes which are not related to his trade, business or profession’.

35. UTD Art 2(b): ‘any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’. Consider, however, the recent case of Case C-110/14 Costea v SC Volksbank România SA ECLI:EU:C:2015:538 (3 September 2015).

36. See Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134, Reg 4 and The Consumer Rights (Payment Surcharges) Regulations 2012/3110 Reg 2.

37. Riefa, C ‘Codification: the future of English consumer law?’ (2015) 4 Eur J Consumer & Market L 12 at 20 Google Scholar. She acknowledges, however, that while the Act consolidates sales and unfair terms law, other key areas of consumer protection remain outside this instrument.

38. Section 1(1), CRA.

39. SI 2002/3045. See Sch 1, para 53, CRA.

40. Certain provisions of Sale of Goods Act 1979 will still apply, however; for example, rules that are applicable to all contracts of sale of goods and those regarding matters such as when property in goods passes.

41. The Consumer Contracts (Amendment) Regulations 2015/1629 Regs 4–6 revoke the provisions of the 2013 Regulations in so far as they are replicated in the Act. This does not, as will be seen below, mean that consumers will not have to refer to both the Act and the 2013 Regulations in some cases. Sections 5, 28 and 29 of the CRA also replace a small number of provisions dealing with matters related to the delivery of goods and the passing of risk that had been earlier placed in the 2013 Regulations: see SI 2015/1629, Reg 8 (which repeals Pt 5 of the 2013 Regulations).

42. See Watterson, S ‘Consumer Sales Directive 1999/44/EC – the impact on English law’ (2001) 2 & 3 Eur Rev Private L 197. MillerCrossRefGoogle Scholar, however, questions whether, despite apparent similarities, common law development of ss 13–15 of the Sale of Goods Act 1979 had led to a different interpretation of key concepts such as ‘description’ found in s 13 SGA and Art 2(2)(a) of the Directive: Miller, L The Emergence of EU Contract Law: Exploring Europeanisation (Oxford: Oxford University Press, 2011) pp 98–99 CrossRefGoogle Scholar. See also Twigg-Flesner and Bradgate, above n 10.

43. Note that s 19(5) deals separately with s 12, providing that if the trader is in breach of a term that s 12 requires to be treated as included in the contract, the consumer has the right to recover from the trader the amount of any costs incurred by the consumer as a result of the breach, up to the amount of the price paid or the value of other consideration given for the goods.

44. Article 28(2), CRD.

45. Article 3, CSD. Article 3(3) provides that ‘In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.’ See Staudenmayer, D ‘The Directive on the Sale of Consumer Goods and Associated Guarantees – a milestone in the European consumer and private law’ (2000) 4 Eur Rev Private L 547 CrossRefGoogle Scholar, who notes that contrary to the original proposal of the European Commission, the European Parliament and Council had almost unanimously opted for a two-stage solution.

46. See above n 42, 209.

47. ‘The buyer's first and primary remedy for a breach of contract by the seller is to reject the goods, and, if appropriate, to repudiate the contract’: Twigg-Flesner, C et al Atiyah and Adams’ Sale of Goods (Harlow: Pearson, 13th edn, 2016) p 435 Google Scholar. See also Halson, R Contract Law (Aldershot: Pearson, 2nd edn, 2013) p 433 Google Scholar.

48. Miller, above n 11, at 92–94.

49. Ibid, at 102.

50. Cf Pt 1B of the Supply of Goods and Services Act 1982.

51. See Bridge, M ‘A comment on “Toward a universal doctrine of breach: the impact of CISG” by Jürgen Basedow’ (2005) 25 Int'l Rev L & Econ 501 CrossRefGoogle Scholar.

52. Above n 16, at [1.17]–[1.18].

53. Note that s 23(3) rectifies s 48B(3)(c) of the Sale of Goods Act 1979, which arguably incorrectly implemented the Directive: see Twigg-Flesner et al, above n 47, p 511.

54. Breaches of ss 12 and 15 are dealt with in ss 19(5) and 19(4), respectively.

55. Section 19(12) does provide, however, that it is not open to the consumer to treat the contract as at an end for breach of a term that this Chapter requires to be treated as included in the contract except as provided by subsections (3), (4) and (6). This overrides any common law right to terminate the contract for breach of the terms that these sections require to be treated as included in the contract.

56. Explanatory Notes to Act, at [93].

57. The one exception (established under subsection (4)) is that for perishable goods that would not be reasonably expected to last longer than 30 days; the period for exercising the short-term right to reject lasts only as long as it would be reasonable to expect those goods to last. In 2009, the Law Commission and the Scottish Law Commission recommended that more certainty was needed over how long the short-term right to reject lasted and recommended that, to give certainty, in normal circumstances, a consumer should have 30 days to return faulty goods and receive a refund: above n 16. This is accepted in the CRA 2015, which also accepts the Commissions’ recommendation that to prevent consumers from being locked into a cycle of failed repairs, consumers should be entitled to escape a contract after one failed repair or one failed replacement: s 24(5)(a).

58. See eg Twigg-Flesner et al, above n 47, pp 506–512; Barry, D et al Blackstone's Guide to the Consumer Rights Act 2015 (Oxford: Oxford University Press, 2016)Google Scholar paras 3.78–3.133.

59. Krummel, T and D'Sa, RM ‘Sale of consumer goods and associated guarantees: a minimalist approach to harmonised European Union consumer protection’ (2001) 26 Eur L Rev 312 at 329 Google Scholar.

60. Above n 45, at 564. Staudenmayer was, at the time, assistant to the Director-General, Directorate-General Health and Consumer Protection. He is now Head of Unit – Contract Law, DG Justice, European Commission. See, generally, Magnus, U ‘Consumer sales and associated guarantees’ in Twigg-Flesner, C (ed) The Cambridge Companion to European Union Private Law (Cambridge: Cambridge University Press, 2010)Google Scholar.

61. Teubner, G ‘Legal irritants: good faith in British law and how unifying law ends up in new divergences’ (1998) 61 Mod L Rev 11.Google Scholar

62. Explanatory Notes to Act, at [521].

63. SI 1994/3159.

64. SI 1999/2083.

65. Weatherill, S EU Consumer Law and Policy (Cheltenham: Edward Elgar, 2nd edn, 2013) p 145.CrossRefGoogle Scholar

66. Ibid, p 308.

67. See Reg 5(1) of the 1999 Regulations. One might consider also the use of the rather clumsy phrase ‘not individually negotiated’.

68. See Collins, H ‘Good faith in European contract law’ (1994) 14 Oxford J Legal Stud 229 CrossRefGoogle Scholar. For a study of the differences in relation to good faith in contracting across the European Union, see Zimmermann, R and Whittaker, S (eds) Good Faith in European Contract Law (Cambridge: Cambridge University Press, 2000).Google Scholar

69. Unfair Terms in Contracts Law Com No 292/Scot Law Com No 199/Cm 6464, 2005.

70. Law Commission and Scottish Law Commission Unfair Terms in Consumer Contracts: A new approach? Issues Paper (2012).

71. Schedule 4, para 34, CRA.

72. The CRA also covers notices to the extent that they relate to rights or obligations between traders and consumers or purports to exclude or restrict a trader's liability to a consumer: s 61(4). It does not cover contracts of employment or apprenticeship: s 61(2).

73. See also s 2 (key definitions).

74. See Gavrilovic, N ‘The Unfair Contract Terms Directive through the practice of the Court of Justice of the European Union: interpretation or something more?’ (2013) 9 Eur Rev Cont L 163.CrossRefGoogle Scholar

75. Section 62(4): ‘A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.’ This was also the policy of the UTCCR; see Reg 5(1), 1999 Regulations. However, s 62(4), unlike Art 3.1 UTD, makes no reference to ‘non individually negotiated’ terms – this will be dealt with below.

76. Sections 62(6) and (7).

77. Sections 62(1)–(3), implementing Art 6.1 of the Directive.

78. Section 62(5), implementing Art 4.1 of the Directive.

79. Above n 70, at [9.50].

80. English and Scottish Law Commissions Unfair Terms in Consumer Contracts: Advice to the Department for Business, Innovation and Skills (March 2013) s 32.

81. Ibid, at [6.42].

82. Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67, [2015] 3 WLR 1373, [105] per Lords Neuberger and Sumption (Lord Carnwath agreeing).

83. CMA Unfair Contract Terms Guidance CMA 37 (2015).

84. [2001] UKHL 52, [2002] 1 AC 481.

85. Reference is made to Case C-415/11 Aziz v Caixa D'Estalvis de Catalunya [2013] All ER (EC) 770, at [44]–[45], [68]–[69] (Spanish procedural rules, which prevented borrowers in arrears from effectively contesting the fairness of their mortgage agreements, found to be contrary to EU law). The Supreme Court recently described Aziz as ‘the leading case on the topic’: Cavendish Square Holding, above n 82, at [105]. Lord Toulson, however, in this case disputed the majority's interpretation of Aziz, which he found to water down the test adopted by the CJEU: at [315].

86. This does not apply, however, if the Directive expressly refers to the law of the Member States. See Case C-279/12 Fish Legal and Shirley [2014] QB 521, at [42]; Case C-204/09 Flachglas Torgau [2013] QB 212, at [37]. This is necessary to ensure the uniform application of EU law across Member States and to comply with the principle of equality.

87. Case 137/08 VB Penzugyi Lizing Zrt v Ferenc Schneider [2011] 2 CMLR 1, at [44] (exclusive territorial jurisdiction clause). See also C-26/13 Kásler v OTP Jelzalogbank Zrt [2014] 2 All ER (Comm) 443.

88. Consider, however, Willers v Gubay [2016] UKSC 44, [2016] 3 WLR 534.

89. English and Scottish Law Commissions, above n 80, s 40.

90. Above n 70, at [9.31–9.35], finding that the reform would affect very few cases in that it is rare for a consumer to negotiate about any term except the price or main subject matter.

91. It should be noted, however, that not all Member States have implemented the requirement for ‘non individually negotiated’ terms; eg Austria, Czech Republic, France, Finland and Sweden.

92. Case C-168/05 Mostaza Claro v Centro Movil Milenium SL [2006] ECR I-10421, at [38].

93. Penzugyi, above n 87, at [46]–[48]; Joined cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Quintero [2000] ECR I-4941, at [25]–[27].

94. Case C-473/00 Cofidis v Fredout [2002] ECR I-10875, at [33]; Océano Grupo, above n 93, at [26].

95. Case C-243/08 Pannon GSM Zrt v Erzsébet Sustikné Győrfi [2009] ECR I-04713, at [35].

96. See eg Whittaker, S ‘Judicial intervention and consumer contracts’ (2001) 117 L Q Rev 215 Google Scholar and Trstenjak, V and Beysen, E ‘European consumer protection law: curia semper dabit remedium?’ (2011) 48 Common Market L Rev 95 at 121 Google Scholar, who argue that case-law had implicitly raised the effectiveness threshold that national procedural rules for the enforcement of EU rights must meet.

97. H-W, Micklitz and Reich, N ‘The court and Sleeping Beauty: the revival of the Unfair Contract Terms Directive’ (2014) 51 Common Market L Rev 771 at 802 Google Scholar. See also Trstenjak, V ‘Procedural aspects of European consumer protection law and the case law of the CJEU’ (2013) 21 Eur Rev Private L 451.Google Scholar

98. Above n 70, at [7.7].

99. Pannon, above n 95.

100. Explanatory Notes to Act, at [341], relying on Penzugyi, above n 87.

101. See Woolf, Lord Access to Justice, Final Report (London: HMSO, 1996)Google Scholar, which precipitated the Civil Procedure Rules (CPR), which came into force in England and Wales on 26 April 1999.

102. Siems, M Comparative Law (Cambridge: Cambridge University Press, 2014) pp 52–55 Google Scholar. See also Van Rhee, CH and Verkerk, R ‘Civil procedure’ in Smits, JM (ed) Elgar Encyclopedia of Comparative Law (Cheltenham: Edward Elgar, 2nd edn, 2012).Google Scholar

103. Ancery, A and Wissink, M ‘Case-note on Pannon ’ (2010) 18 Eur Rev Private L 307 at 314Google Scholar. Trstenjak, AG in Penzugyi Google Scholar, above n 87, argued, however, that in many cases the court would be unlikely to encounter any particular practical difficulties in ascertaining the relevant facts: at [113].

104. Kásler, above n 87, at [42]; Office of Fair Trading v Abbey National plc [2009] UKSC 6, at [43] per Lord Walker; Director General of Fair Trading v First National Bank plc [2001] UKHL 52, at [34] per Lord Steyn and at [12] per Lord Bingham.

105. See Collins, above n 68, at 238, who notes that even at a late stage in the negotiations, the draft Directive had envisaged the introduction of a general principle against substantive unfairness in consumer contract. Note also the influential article of HE Brandner and P Ulmer ‘The Community Directive on Unfair Terms in Consumer Contracts: some critical remarks on the proposal submitted by the EC Commission’ (1991) 28 Common Market L Rev 647, who argued at 652 that some limits were needed to avoid ‘a drastic restriction of the autonomy of the individual’.

106. Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid [2010] ECR I-4785, at [32].

107. Transposed originally under Reg 3(2) UTCCR 1994 and then Reg 6(2) of the UTCCR 1999.

108. [2009] UKSC 6, [2010] 1 AC 696. For criticism, see Chen-Wishart, M ‘Transparency and fairness in bank charges’ (2010) 126 L Q Rev 157 Google Scholar; Davies, P ‘Bank charges in the Supreme Court’ [2010] Cambridge L J 21 CrossRefGoogle Scholar. The potential for difficulty had been recognised from the time of transposition of the Directive: see Macdonald, E ‘Mapping the Unfair Contract Terms Act 1977 and the Directive on unfair terms in consumer contracts’ [1994] J Bus L 441 at 459–462.Google Scholar

109. Ibid, at [50] per Lord Walker. For criticism, see Schillig, M ‘Directive 93/13 and the “price term exemption”: a comparative analysis in the light of the “market for lemons” rationale’ (2011) 60 Int'l & Comp L Q 933 CrossRefGoogle Scholar, who notes, however, that this reluctance is shared by other European national courts.

110. Above n 70, Pt 6.

111. Whittaker, S ‘Unfair contract terms, unfair prices and bank charges’ (2011) 74 Mod L Rev 106 CrossRefGoogle Scholar; Kenny, M (2011) 19 Eur Rev Private L 43 Google Scholar, who compares the ‘Europeanized’ approach in First National Bank with the more traditional and formalistic approach of the Supreme Court in Abbey National.

112. Above n 70, at [8.13].

113. Not a consumer notice.

114. Previously: ‘the definition of the main subject matter of the contract’.

115. Previously: ‘adequacy of the price or remuneration’. Lord Mance in Abbey National [2009] UKSC 6, at [94] commented that ‘Adequacy of the price or remuneration (the word also used in the Directive) means appropriateness or reasonableness (in amount).’

116. Section 64(6) provides that this section does not apply to a term of a contract listed in Pt 1 of Sch 2.

117. Explanatory Notes to Act, at [317].

118. Explanatory Notes to Act, at [313].

119. Above n 70, at [8.27].

120. Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433.

121. This concept developed in the free movement case-law of the CJEU but has since been applied more broadly, notably in the Unfair Commercial Practice Directive 2005/29/EC OJ L 149 (11 June 2005) pp 22–39 (see Recital 18 and Art 5). The UK Consumer Protection from Unfair Trading Regulations 2008 SI 2008/1277, Reg 2(2) on this basis mirror the CJEU's approach in Case C-210/96 Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt-Amt für Lebensmittelüberwachung [1998] ECR I-4657 (on egg labelling). See, generally, Mak, V ‘The “average consumer” of EU law in domestic and European litigation’ in Leczykiewicz, D and Weatherill, S (eds) The Involvement of EU Law in Private Law Relationships (Oxford: Hart Publishing, 2013).Google Scholar

122. Wilhelmsson, T ‘The abuse of the confident consumer as justification for EC consumer law’ (2004) 27 J Consumer Pol'y 317 CrossRefGoogle Scholar; Loos, MBM ‘Transparency of standard terms under the Unfair Contract Terms Directive and the Proposal for a Common European Sales Law’ (2015) 23 Eur Rev Private L 179 at 188–189 Google Scholar; Hacker, P ‘The behavioural divide: a critique of the differential implementation of behavioral law and economics in the US and the EU’ (2015) 11 Eur Rev Cont L 299.Google Scholar

123. Lord Denning, for example, found this paradigm to be ‘a fiction. No customer in a thousand ever read the conditions’: Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, at 169. See also Kenny, M ‘The Law Commissions’ 2012 issues paper on unfair terms: subverting the system of “Europeanized” private law?’ (2013) 21 Eur Rev Private L 871 Google Scholar.

124. Hondius, E ‘The notion of consumer: European Union vs. Member States’ (2006) 28 Sydney L Rev 89 at 94 Google Scholar. See also Weatherill, S ‘The role of the informed consumer in EC law and policy’ (1994) 2 Consumer L J 49.Google Scholar

125. See Thompson v London, Midland and Scottish Railway Co Ltd [1930] 1 KB 41.

126. See eg, recently in relation to the 1993 Directive, Case C-537/13, Šiba v Devėnas ECLI:EU:C:2015:14, at [22] and Case C-488/11 Asbeek Brusse and de Man Garabito EU:C:2013:341, at [31]. See also Leczykiewicz, D and Weatherill, S (eds) The Images of the Consumer in EU Law (Oxford: Hart Publishing, 2016).Google Scholar

127. Kásler, above n 87, at [75]; Matei v SC Volksbank Romania SA (C-143/13) [2015] 1 WLR 2385, at [74]–[75].

128. Case C-484/08 Caja de Ahorros y Monte de Piedad de Madrid [2010] ECR I-4785, at [34].

129. Kásler, above n 87.

130. Ibid, at [49]–[50].

131. Ibid, at [58]. See also Matei, above n 127.

132. See Willett, C ‘General clauses and the competing ethics of European consumer law in the UK’ [2012] Cambridge L J 412.CrossRefGoogle Scholar

133. Recital 2, UTD.

134. European Commission ‘A European consumer agenda – boosting confidence and growth’ COM (2012) 225 p 2. Straetmans comments that ‘the internal market-building process had (and still has) a strong bearing on the development of the European consumer concept’: Straetmans, G ‘Some thoughts on the future European consumer acquis’ [2009] Eur Bus L Rev 423.Google Scholar

135. Willett, C ‘Fairness and consumer decision making under the Unfair Commercial Practices Directive’ (2010) 33 J Consumer Pol'y 247 at 271.CrossRefGoogle Scholar

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137. Van Hoecke, M and Warrington, M ‘Legal cultures, legal paradigms and legal doctrine: towards a new model for comparative law’ (1998) 47 Int'l Comp L Q 495 at 533.CrossRefGoogle Scholar

138. It is noticeable that the focus of the Law Commissions’ 2009 report on Consumer Remedies (above n 16) was that of retaining the common law right to reject despite the provisions of the 1999 Directive rather than critically assessing the transposition of the 1999 Directive into UK law.

139. Teubner, above n 61.

140. See Zimmermann, R ‘Contract law reform: the German experience’ in Vogenauer, S and Weatherill, S (eds) The Harmonisation of European Contract Law (Oxford: Hart Publishing, 2006), pp 86–87.Google Scholar

141. Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content, Brussels (9 December 2015) COM (2015) 634 final.

142. Proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods, Brussels (9 December 2015) COM (2015) 635 final.

143. See Micklitz and Reich, above n 97.

144. Cf M Amos ‘Transplanting human rights norms: the case of the United Kingdom's Human Rights Act’ (2013) 35 Hum Rts Q 386.