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Procedural Consumer Rights

In recent years, the European Commission has started to recognize the importance of enforcement as a central part of its policy. This trend is supported by the Lisbon Treaty, which expands and clarifies the EU competence to legislate in civil procedure, and provides new opportunities to promote a coherent redress model for consumer law. The ECJ’s jurisprudence also had a major impact on the development of civil procedure rules in the EU.[1]

Recent developments in EU law and policy

Procedural rights and in particular collective redress mechanisms have been debated in different EU policy areas for some years now.

Collective redress mechanisms have been suggested in competition law, inspired by the ECJ’s judgment in the Courage case.[2] The ECJ held that the full effectiveness of EC competition law would be put at risk ifit were not open to any individual to claim damages. This ruling was confirmed in Manfredi, where the ECJ stated that ‘( . . . ) any individual can claim compensation for the harm suffered where there is a causal relationship between that harm and an agreement or practice prohibited under Article 81 EC’.[3]

As a result, the European Commission has considered EU collective redress mechanisms in the 2005 Green and 2008 White Papers on Damages Actions for Breach of the EC Antitrust Rules.[4] Both papers encouraged a proposal for a directive on collective redress against infringement of competition law. Political pressure, however, prevented the publication of a draft directive at the end of2009. On 11June 2013, the Commission eventually adopted a proposal for a directive on antitrust damages actions for breaches of EU competition law.[5]Should this directive be adopted, it may also encourage consumer actions to obtain damages in relation to breaches of competition law. This would be an important innovation, as companies infringing competition law often avoid paying any compensation to consumers.

Debates on effective judicial protection and on the right to participate in EU procedures have also resurfaced in consumer policy and in the case law. This is reflected in the EU Consumer Policy Strategy for 2007-2013,[6] which stresses that enforcement is a central part of consumer legislation. Furthermore, the EU commissioned various studies on redress mechanisms in and out of court and recently adopted new legislation on consumer ADR and ODR, which will be discussed later in this chapter.[7]

This trend is also visible in the case law. The ECJ has recognized the right to effective judicial protection of consumers[8] and the right of consumer organizations to be heard. For example, regarding this latter, the General Court affirmed in the recent Test-Achats v European Commission case the core role of procedural rights for consumer associations, referring in particular to the Charter of Fundamental Rights.[9] This case was brought by Test-Achats, a Belgian consumer association, requesting the General Court to annul a clearance decision of the Commission, which declared a merger compatible with the internal market. In particular, Test-Achats claimed that the Commission breached Article 6(2) of the Merger Regulation No 139/2004,[10] because its right to participate in the procedure and to be heard had been denied. The Commission in turn argued that the applicant did not need to be heard, because the effects of the merger on the Belgian retail market would have only been secondary in nature. The General Court rejected this argument by the Commission, and its narrow interpretation, explaining that the fact that the merger may only have indirect market effects concerning consumers does not limit the applicant’s right to be heard.[11]

The Court stated that in this situation the intermediate and ultimate consumers have to be heard, on the basis of Article 2(1) of Regulation No 139/2004 and in particular in reference to Article 12 TFEU, which requires that consumer protection interests must be considered in other EU policies. Interestingly, the Court also specifically referred to Article 38 of the Charter of Fundamental Rights in this context, which provides that EU policies must ensure a high level of consumer protection. The General Court held that ‘the Commission cannot reject the claim of a consumer association which seeks to be heard as a third party demonstrating a sufficient interest in a merger without providing that association with an opportunity to show in what respect consumers may be concerned by the merger at issue’.[12]

By this judgment the General Court affirmed that consumer associations have the procedural right to be heard by the Commission during administrative merger investigations. This right is, however, only applicable under certain conditions: first, the merger must relate to goods or services used by final consumers; and second, an application to be heard by the Commission must have been submitted in writing by the association within the deadline.[13]

In the present case, Test-Achats did not comply with all the required conditions, so the General Court dismissed its action. This case is significant as it highlighted the procedural rights of consumer organizations to represent the general consumer interests in administrative procedures. It is also noteworthy that the Court based its decision inter alia on Article 38 of the Charter of Fundamental Rights, thereby emphasizing the additional value of this provision for ensuring a high level of protection and procedural rights for consumers.

At the policy level, the European Commission recently assessed whether new collective consumer procedures should be adopted at the EU level. In 2008 the Commission adopted a Green Paper on Collective Consumer Redress,[14] suggesting four options to improve consumer redress: (1) no EC action; (2) cooperation between Member States; (3) a mixture of policy instruments to strengthen redress; and (4) binding or non-binding collective redress measures, or a mixture of the four options. A follow-up discussion paper[15] in 2009 provided a larger choice of policy options, including self-regulation and ADR schemes. The Commission also identified benchmarks for efficient collective redress systems.[16]

More recently, the Directorates-General for Competition, Health and Consumers, and Justice have started to focus on a more coherent approach to collective redress.[17] On 4 February 2011 the Commission issued a new consultation paper on collective redress, which aims to identify common legal principles that would fit into the EU legal system. This document shows a more open approach to an EU redress framework, considering alternative dispute resolution and litigation funding alongside collective redress mechanisms. In response to the consultation, the European Parliament adopted a resolution in February 2012, which encouraged the development of common legal principles that could offer inspiration for the different DGs to propose sector-specific collective redress measures. At the same time, the Parliament requested the Commission to assess carefully the need and legal basis for a potential future initiative.

In the light of these developments the question arises as to whether the EU has sufficient competence to adopt civil procedure measures in the specific field of consumer law.

  • [1] M. Tulibacka, 4 Europeanization of Civil Procedures: In Search of a Coherent Approach’ , (2009) 46 CML Rev., pp. 1535 etseq.
  • [2] Case C-453/99, Courage v Crehan Ltd [2001] ECR I-6314, para. 26; see N. Reich, ‘TheCourage Doctrine: Encouraging or Discouraging Compensation for Antitrust Injuries?’ (2005)42, CML Rev, p. 35; C. Hodges, ‘Competition Enforcement, Regulation and Civil Justice: What isthe Case?’, (2006) 43 CML Rev., pp. 1381-407.
  • [3] Joined Cases C-295/04—298/04, Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECRI-6619, para. 61.
  • [4] On 2 April 2008, the Commission adopted a White Paper on Damages Actions for Breachof the EC Antitrust Rules (COM(2008) 165), and on 19 December 2005, a Green Paper(COM(2005) 672).
  • [5] Proposal for a Directive on certain rules governing actions for damages under national law forinfringements of the competition law provisions of the Member States and of the European Union,COM(2013) 404 final, 11.6.2013,
  • [6] Consumer Policy Strategy 2007-2013, COM(2007), 13.3.2007: .
  • [7] See the ADR and collective redress studies in the EU: ; see more on ADR in subsection 3.4 and 3.5.
  • [8] Key cases dealing with judicial protection of consumers will be discussed later in this chapter,e.g. Case C-168/05, Elisa Maria Mostaza Claro v Centro Movil Milenium SL [2006] ECR I-10421;Joined Cases C-317/08 to C-320/08, Alassini and others v Telecom Italia [2010] ECR I-2213.
  • [9] Case T-224/10, Association belge des consommateurs Test-Achats ASBL v European Commission 12October 2011, not yet reported.
  • [10] See Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, OJ L 24, 29.01.2004.
  • [11] Case T-224/10, Association belge des consommateurs Test-Achats ASBL v European Commission12 October 2011, not yet reported, para. 43.
  • [12] Case T-224/10, Association belge des cornommateun Test-Achats ASBL v European Commssion12 October 2011, not yet reported, para. 44; see also Case T-256/97, BEUC v Commission [2000]ECR II-101, para. 77.
  • [13] Case T-224/10, Association belge des comommateurs Test-Achats ASBL v European Commssion12 October 2011, not yet reported, para. 37.
  • [14] The Green Paper on Consumer Collective Redress, Brussels, COM(2008) 794, p. 7.
  • [15] Consultation paper: .
  • [16] The Commission proposes 10 points, including financing of actions and the provision of satisfactory redress; see: .
  • [17] 4 Towards a Coherent European Approach to Collective Redress: Next Steps’, Joint information note by Reding, Almunia and Dalli, European Commission, SEC (2010) 1192,05.10.2010.
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