Unfair Contract Terms and Consumer Guarantees: the Proposal for a Directive on Consumer Rights and the Significance of ‘Full Harmonisation’

Abstract

In October 2008 the EC Commission published a Proposal for a Directive on Consumer Rights. This proposal seeks to put together provisions from four existing directives of the consumer acquis, replacing the traditional 'minimum' nature of their protection with 'complete harmonisation'. This article examines the extent to which the placing of provisions relating to these areas within the framework of a single Directive has substantively altered their field of application; it explains the substantive changes proposed for two of these directives (unfair contract terms and consumer sales); and it identifies a fundamental ambiguity in what is meant by full harmonisation for this purpose. For 'complete harmonisation' would either require Member States to disapply all other national legal rules which could overlap with the impact of these two sets of harmonised rules in their respective contexts (all rules affecting the validity of terms in consumer contracts, all remedies in respect of failures in quality, fitness for purpose or contractual conformity of goods in consumer contracts of sale of goods), with costs in terms of national coherence and the development of perverse incentives as well as in terms of the weakening of the substantive legal policies pursued by those rules. Or an attempt would have to be made to restrict the impact of 'full harmonisation' to the conceptual schemes actually set out by the Proposal, leaving untouched 'other grounds' of control of contract terms or buyer's rights (as the case may be). This second approach would enable the undesirable effects of the first choice to be avoided, but it would fundamentally undermine the economic purpose of introducing full harmonisation.