Economic and social dimensions of consumer law
As discussed in Chapter 2, the EU consumer law framework presents some limitations. The capability theory discussed in subsection 3.2 has in particular two elements which may help policy- and law-makers to overcome some of these limitations: first, the idea of maintaining and strengthening ‘substantive freedoms’; secondly, the idea of promoting social and economic objectives along with human rights.
Sen’s focus on freedom and opportunities and their meaning for consumer law have been discussed in section 3. Here we recall that they may underpin a legal model with the desirable quality of being protective but at the same time non-intrusive. Hence, Sen’s theory may inspire a system able to solve the dilemma of choosing between a paternalistic, over-protective state, which stifles growth and competition, and an under-protective system, narrowly focused on economic growth.
The other important element in Sen’s discourse is the recognition of the importance of economic and social rights. Interestingly, the legal framework developed after Lisbon has placed an increasing weight on such social objectives, as can be inferred from new provisions. The most important legal novelties in this sense appear in the Lisbon Treaty and in the Charter of Fundamental Rights.
The Lisbon Treaty enumerates several social goals in a catalogue of EU objectives (Article 3 TEU). Article 3(3) TEU, for example, states that the
Union ‘shall work for ( . . . ) a competitive social market economy’. First proposed as an intermediate solution between laissez-faire and planned economy, the concept of ‘competitive social market’ has been very influential in the policy of the Federal Republic of Germany, thus proving its practical applicability in a national context.97 The question remains as to whether such a concept can also influence the policy of the Union. For example, Joerges and Rodl argue that it may have little impact at the supra-national level, as the EU lacks the competences required to implement it.98 Despite this, the reference to a social market economy is a clear recognition of the need for an equilibrium between freedom objectives and social goals.
Besides such a social market concept, Article 3 TEU contains other ‘solidarity’ objectives ranging from the goal to ‘combat social exclusion and discrimination’, to the aim to ‘promote social justice and protection’. The inclusion of these objectives is an innovative transformation of the pre-Lisbon Article 2 TEU, and may well directly influence EU policy and the interpretation of Treaty provisions by the ECJ. Moreover, such provisions may inspire institutions, which can influence new legislative proposals, particularly if considered in conjunction with the rights recognized in the Charter.99
As mentioned, important steps towards a stronger recognition of social values also appear in the Charter of Fundamental Rights.100 This has several provisions not strictly referring to consumers, but which can be relevant nonetheless—for example, Article 26 on access to services of economic interest, discussed in Chapters 5 and 6 of this book.
As we have seen in previous chapters, a specific Charter provision regarding consumer protection figures in Article 38, which states that ‘Union policies shall ensure a high level of consumer protection’. This norm does not establish a subjective right but, evidently, has been designed to give guidance to
Market Competition’. The Protocols have the same legal value as the rest of the Treaty, so this change is mostly formal. And yet it may reveal a change in the legislator’s attitude.
- 97 The ‘social market economy’ concept was first formulated by economist Muller-Armack in 1946. See also A. Muller-Armack, Wirtschaftslenkung und Marktwirtschaft (Munich, Kastell Verlag, special edition, 1990).
- 98 C. Joerges and F. Rodl, ‘ “Social Market Economy” as Europe’s Social Model?’, in L. Magnusson & B. Strath (eds), A European Social Citizenship?: Preconditionsfor Future Policies from a Historical Perspective (Brussels, Peter Lang, 2004), pp. 125 et seq.
- 99 See e.g. the House of Lords, European Union Committee, The Treaty of Lisbon: an Impact Assessment, 10th Report of Session 2007-08, p. 22.
- 100 See regarding the influence of the Charter: AJ. Menendez, ‘Some Elements of a Theory of European Fundamental Rights’, in AJ. Menendez & E.O. Eriksen (eds), Arguing Fundamental Rights, Law and Philosophy, Vol. 77 (Dordrecht: Springer, 2006), pp. 155 et seq.
EU policy and future legal initiatives. Moreover, this provision can also become a reference point for the ECJ. As we will see in Chapter 7, the ECJ already referred to this provision when it had to decide on issues of consumer protection.
The Charter and the post-Lisbon legal framework may thus indicate a rebalancing of priorities in favour ofsocial objectives. However, in the light of some important ECJ cases, the long-term implications of these provisions remain unclear, in particular in those cases when fundamental rights clash with economic (free movement) rights. For example, in Schmidberger the Court had to balance economic rights against fundamental rights. It decided that the blocking, by environmental protestors, of a motorway, posing an obstacle to cross-border trade, was justified because of the importance of the freedom of expression of the protestors. In contrast, in the more recent Viking and Laval cases the ECJ had to balance economic freedoms with collective labour rights, and gave precedence to the former. While the Court acknowledged collective action as a fundamental right, it held that in the specific cases the collective actions carried out had not been proportionate to the aim pursued and were thus unlawful.
These cases dealt with fundamental rights in environmental and labour law. Nevertheless, they are interesting examples, as similar conflicts could occur in consumer law. More specific examples will be considered later, analyzing recent cases where the Court had to balance different conflicting fundamental rights, such as the rights to information and privacy as opposed to the right to property.
-  Sen, ‘Elements of a Theory of Human Rights’ (n 72), p. 315.
-  See also Deakin & Browne (n 51), pp. 37 et seq.
-  Arguably, the Treaty also seems to downplay traditional market-oriented goals. For example, theobjective of protecting competition, which figured prominently in Art. 3(1)(g) of the pre-LisbonEC Treaty, has been omitted from the current list, and has been relegated to a Protocol on ‘Internal
-  See S. Weatherill, ‘From Economic Rights to Fundamental Rights’, in S. de Vries, U. Bernitz, &S. Weatherill, The Protection of Fundamental Rights in the EU After Lisbon (Oxford: Hart Publishing,2013), pp. 32—4; N. Nic Shuibhne, ‘Margins of Appreciation: National Values, Fundamental Rightsand EC Free Movement Law’ (2009) 34(2) Eur. L. Rev., pp. 230-56.
-  For a discussion on recent fundamental rights case law see S. Douglas-Scott, ‘The EuropeanUnion and Human Rights after the Treaty of Lisbon’, (2011) 11(4), Hum. Rts. L. Rev., pp. 645-82.
-  Case C-112/00, Eugen Schmidberger v Republik Osterreich  ECR I-5659.
-  Case C-438/05, Viking Line  ECR I-10779; and Case C-341/05, Laval un Partneri ECR I-11767.
-  The impact of fundamental rights and of the Lisbon Treaty on particular areas of consumerlaw will be discussed in detail in later chapters (5-7).