Centre for the Study of European Contract Law

CALL FOR PAPERS: A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights

11-12 April 2019, Amsterdam

22 October 2018

The 2019 CSECL conference revolves around the New Deal for Consumers that was proposed by the European Commission on 11 April 2018. It focuses on issues of civil justice that the New Deal aims to address – as well as, crucially, the questions it appears to raise. The workshop will bring together researchers interested in (the future of) European private law, civil procedure, consumer law and, possibly, others with an interest in the enforcement of EU law and EU constitutional law.

 

Theme
Over the past years, it has become increasingly clear that the realisation of the level of consumer protection envisaged by EU law – i.e. the justiciability of consumer rights – is heavily dependent on the establishment of effective enforcement mechanisms. With most directives leaving substantive remedies and procedural matters in the hands of the Member States, the (CJ)EU has emphasised the need for minimum requirements (the principles of equivalence and effectiveness and effective judicial protection) and harmonised procedures to enforce and protect consumer rights at the national level. Examples of this tendency are multiple, ranging from the directive on antitrust damages actions to the injunctions directive, the consumer ODR regulation and the ADR directive. The CJEU’s case law in this direction is also abundant and well-known (from the Aziz saga to remedies for non-conform goods).

Therefore, it should perhaps not come as a surprise that the New Deal for Consumers, under the promise of modernising consumer protection, mainly concentrates on enforcement – according to the Commission’s own press release, securing “that all European consumers fully benefit from their rights under Union law”. While proposing to introduce a “right to a remedy” in the field of unfair commercial practices, thus intervening also in the field of substantive remedies, the Commission’s legislative proposals mainly concentrate on procedural innovations, presented as amendments to or reformulations of existing directives.

This all begs the question of what and whom this increased effectiveness is for. According to Commissioner Jourova, In a globalised world where the big companies have a huge advantage over individual consumers we need to level the odds. Given the concrete undertakings of these directives, ranging from representative actions for redress to sanctions, it is not immediately clear that it is the rights of individual consumers the Commission has in mind.

This triggers a discussion on which directions the creeping harmonisation of procedure that the package seems to introduce will take – possibly including the further instrumentalisation of national procedural law to ends that national courts may not always be entirely aware of. It also gives rise, once more, to questions concerning the role of individual consumers’ rights in the EU’s strategy: is this yet another example of the Commission’s “justice for growth” approach, or is it a move towards a more rights-based approach?

A number of issues can, thus, be raised. Among others:

  • The challenges of representative actions, beyond the Commission’s preoccupation with “avoiding abuses”
    One of the Commission’s proposals is to introduce a European collective redress mechanism. Questions can be raised as to its broader objectives – between securing access to civil justice and disciplining market actors – as well as the desired level of harmonisation (vs. fragmentation).
  • An active role of courts – what/whose interests are in the balance?
    The tension between access to civil justice and ‘public policy’ goals is also reflected in the envisaged role of civil courts as “enforcers” of EU law and, at the same time, their role as adjudicators. What makes private law adjudication “private”?
  • ODR/ADR
    The proposal aims to strengthen consumer rights online, which relates to the enforcement and protection of those rights and, in particular, available dispute resolution mechanisms. What is the purpose of ‘private’ adjudication such as arbitration vis-à-vis (public) State courts, in the light of EU law? How can justice still be ensured?
  • Proceduralisation and substantive rights
    The proposals do little in the field of substantive remedies. What are the consequence of leaving such a gap between substantive rights and corresponding remedies? To what extent is or should there be more convergence?
     

We particularly welcome papers that expressly address the interaction and tension between different functions of (consumer law) adjudication and enforcement mechanisms, as well as the converging or diverging (public and private) interests involved at the different relevant levels. Who or what is the New Deal for?

Programme
The workshop will take place on Thursday 11 and Friday 12 April 2019 at the Law Faculty of the University of Amsterdam. It consists of two keynote speeches and four panel discussions, two on Thursday afternoon (14:00-15:30 and 16:00-17:30, followed by drinks and a speakers dinner) and two on Friday morning (9:30-11:00 and 11:30-13:00). On each panel there will be two speakers and one discussant, possibly with a practical background (a judge or a representative of a consumer organisation). There will be room for 40-50 participants in total.

Call for papers
We encourage younger and more established researchers interested in the theme to submit an abstract by 21st December 2018 by email to Rahila Haque, r.haque@uva.nl. Draft papers will be due at the end of March 2019. CSECL endeavours to cover the accepted speakers’ (economy class) travel and accommodation costs.

The organisers and CSECL aim to publish some or all conference proceedings in a special issue of a reputable European law journal. More details will follow.

For further information
If you have any questions about the conference or require further information, please contact Anna van Duin and Candida Leone.

Published by  CSECL