Please find below a blog post on the CSECL conference titled, 'A New Deal for Civil Justice? The New Deal for Consumers and the Justiciability of EU Consumer Rights.' The conference has focused on issues of civil justice arising from the new deal for consumers proposed by the European Commission on 11 April 2018.
On 11-12 April 2019 the CSECL conference on the “New Deal for Consumers” brought together professionals from various countries, researching and practising inter alia in the field of European Private Law, Civil Procedure and Consumer Law.
The “New Deal” focuses on strengthening EU consumer rights and enforcement. It introduces a directive on representative actions for the protection of the collective interest of consumers as well as new substantive remedies by for example proposing a right to a remedy in the Unfair Commercial Practises Directive. The conference aimed to evaluate the content of the Proposal and its possibilities and limitations for the justiciability of consumer rights by approaching the topic from different angles, reflected in three panels.
After the opening speech given by Prof. Colin Scott (University College Dublin) who approached the New Deal from a public law perspective, the first panel focused on collective redress mechanisms in Europe. The Commission’s approach was overall very welcomed by the participants, who however identified some shortcomings. Maria Ioannidou (Queen Mary University of London) stressed that the concrete aim of the Proposal remains unclear and called for more regulatory honesty. Hanna Misiak (University of Gdańsk / University of Pisa) discussed the still unclear scope of the definition of the collective interest of consumers in the Proposal, which requires further refinement. Aukje van Hoek (University of Amsterdam) wrapped up those contributions by emphasizing that the Proposal leaves Private International Law issues unchanged, which means that cross-border collective claims remain problematic. In the second part of the first panel, Eleni Kaprou (Brunel University London) commenced by stressing concerns regarding the standing of qualified entities in cross-border situations and issues evolving around their funding. Thereafter, Rita Simon (Czech Academy of Sciences) suggested to consider the possible impact that administrative injunctions with compensatory relief could have, especially on the development of consumer rights enforcement in Eastern Europe. Patrick Haas (Partner/Attorney at AKD) concluded the first panel by giving a practical insight from his experience representing Stichting Volkswagen Car Claim in a Dutch collective action. He further emphasized the substantial influence of a large company such as Volkswagen in a collective proceeding as well as behind the scenes of the public debate on consumer rights enforcement. He stressed that this should be the focus of the discussion rather than the popular fear of abusive litigation, which is in his view not justified.
Opening the second panel, Iris Benöhr (Queen Mary University of London), who focused on collective redress in the financial services sector, compared the successful UK model of the Financial Ombudsman Service with the German Capital Market Model Claims Act. She concluded that alternative dispute resolution mechanisms can be suitable tools in order to meet the needs of a special sector, such as financial services and should thus be encouraged. Charlotte Pavillon (University of Groningen) presented her study on the ex officio control of unfair terms by national civil courts, which revealed big differences between the Member States. She questioned if the New Deal should provide guidance in this regard as opposed to the general principle of procedural autonomy of the Member States. Anne-Jel Hoelen discussed the previous contributions from her perspective as working for the Netherlands Authority for Consumer and Market and thus concluded the second panel with a practical insight.
The third panel, which focused on alternative and online dispute resolution, was kicked off by Cátia Marques Cebola (Polytechnic Institute of Leiria) who introduced the Spanish and Portuguese ADR and ODR systems and elaborated on their ambiguous relation to the European ADR and ODR legislative framework. Following up on this, Rafaela Nogueira (FGV Direito Rio), Maria José Schmidt-Kessen (Copenhagen Business School) and Marta Cantero (CUNEF Madrid/University of Tartu) discussed the success of consumer ODR platforms in Brazil and their potential as an influential source for the further development of ADR and ODR in the European Union. Concluding the last panel, Annette Jantzen enriched the discussion by providing her views as a practitioner of the pan-European National Energy Ombudsmen Network (NEON) and thus adding her sector specific expertise to the discourse.
The participants generally consented that the New Deal for Consumers presents a step into the right direction for effective enforcement of consumer rights and improved access to justice. However, as Eva Storskrubb (Uppsala University) stressed, the Proposal faces the issue of “multiplicity of interests and perspectives” and it remains a challenge to satisfy the various and partly opposing demands.
The discourse between several scholars and practitioners facilitated by the CSECL conference, however undoubtfully contributed to bridge the different stances and thus further development and progress of effective consumer rights enforcement in the European Union. The CSECL is thus very grateful for the rich contributions and the fruitful discussions of all speakers and participants.