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Implicit consumer protection in human rights agreements

Before an explicit mention was made of consumer law at the international level, several human rights agreements already implicitly protected consumers.[1] In 1966, the United Nations General Assembly adopted the International Covenant on Economic, Social and Cultural Rights (ICESCR),[2] which is compulsory at the international level and has been in force since 1976. At the regional level, the Council of Europe established two treaties, the European Convention on Human Rights (ECHR) in 1950[3] and the European Social Charter (ESC) in 1961,[4] which can be seen as the social counterpart of the ECHR.

Some of the economic and social rights in the ICESCR can be conceived of as consumer protection. The right to an adequate standard of living, established in Article 11(1), includes the right to adequate food, clothing, housing, and to a continuous improvement of living conditions. Adequate food and improvement of living conditions also means safety, information, and arguably fair prices, which can be achieved through consumer protection legislation. The right to physical and mental health in Article 12 of the ICESCR includes the improvement of environmental and industrial hygiene, and the prevention of diseases. As the protection of the individual from hazardous products is equally an aim of consumer law, this provision implicitly also protects consumers.

The same can be deduced for the ECHR and the ESC. Article 6 ofthe ECHR enshrines the human right to a fair trial, including access to justice within a reasonable time for each citizen. This provision already plays an important role in procedural consumer law as a basis to ensure effective judicial protection.[5]

Article 10 of the ECHR includes the right to freedom of expression, which may also protect the right of consumers or consumer organizations to form opinions and to receive and divulge information. Interestingly, the objective of consumer information and protection became an important element of assessment by the European Court of Human Rights in connection with the freedom of expression of authors or publishing firms regarding publications on consumer-related matters.[6] For example, in Hertel v Switzerland the European Court of Human Rights held that the freedom of expression could not be restricted although this impinged inter alia on competition law. In other cases, it acknowledged a restriction under certain conditions, in particular, where the ‘commercial expression’ by an organization might mislead consumers through its marketing practices.[7]

Another ECHR provision of particular interest for consumer protection is Article 11 on the right to freedom of assembly and association. This provision may serve as a guarantee for consumer organizations to establish themselves freely and hold meetings to promote consumer interests. Finally, the provision on health protection, in Article 11 of the ESC, may also be a source of consumer law, protecting the individual against defective products or harmful services.

In conclusion, although none of the documents mention consumers explicitly, they may well address consumer protection issues in an indirect way. In particular, Article 6 of the ECHR has already played a significant role in cases regarding consumer access to justice.

  • [1] See also Deutch (n 4), pp. 558 etseq.
  • [2] The Covenant was adopted and opened for signature, ratification, and accession by GeneralAssembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, inaccordance with Art. 27.
  • [3] For the full text see the European Treaty Series no. 5 at the Council of Europe website: .
  • [4] European Social Charter, CETS no. 035, opening for signature: Turin 1961, entry intoforce: 1965. Full text at: .
  • [5] See e.g. Joined Cases C-317/08 to C-320/08, and others v Telecom Italia [2010] ECRI-2213 and ch. 7 in this book.
  • [6] ECtHR, Hertel v Switzerland, App. no. 25181/94, Judgment of 25 August 1998; ECtHR, Markt Intern Verlag GMBH and Klaus Beermann v , App. no. 10572/83, Judgment of 25 October 1989.
  • [7] See e.g. ECtHR, X and Church of Scientology v Sweden, App. no. 7805/77, Judgment of 5May 1979.
 
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