The Real (New) Deal: Levelling the Odds for Consumer-Litigants On the Need for a Modernisation, Part II

Abstract

With its New Deal proposals, the European Commission aimed to secure that all consumers “fully benefit from their rights under Union law”. We argue that such commitment requires taking a step back from an exclusive focus on enforcement, to tackle challenges to the justiciability of consumer rights. Consumers must be seen both in their role as claimants and when they act as defendants. By means of a case-study threading together the main developments in the case law of the Court of Justice of the European Union concerning procedural guarantees for consumers from the past year, we seek to highlight the shortcomings of the current reliance on ‘judicial harmonisation’. The identified shortcomings, we claim, show that limited harmonisation of civil procedure is required, with regard to establishing minimum protective standards in cases involving consumers. For interested readers, we also list a number of specific issues that we think such harmonisation should engage with.

Note: This paper has been submitted for a special issue of the European Review of Private Law with the proceeds of the conference ‘A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights’ (Amsterdam, 11-12 April 2019).

Keywords: EU consumer law, consumer rights, modernisation, enforcement, access to justice, ex officio, procedural harmonisation

JEL Classification: K41, K20, K12