Who Does What in Consumer Law? A Search for Criteria for Centralised Lawmaking

Abstract

This contribution critically assesses the present distribution of competences in the area of consumer law. According to Art. 4 TFEU, consumer protection is a shared competence of both the European Union and the member states. Despite the apparent success of European consumer law, it is investigated to what extent consumer protection should indeed be a matter for both geographical levels of government. To this end, the starting presumption is that national rules should govern this field because of the diversity that they can protect. The three arguments presented in this sense relate to the economics of federalism, reducing monopolist behavior and experimenting with diversity. Subsequently, two main criteria are proposed which legitimise centralised rule-making: fragmentation (including consumer confidence and novelty as determining factors) and permeability (including negative externalities and race to the bottom as factors).

This framework is subsequently applied to two case studies. In case of doorstep selling, the criteria for centralised lawmaking are not fulfilled, and thus centralised action is not justified. However, not the same can be said about Internet shopping, which is considered as a field where the criteria are met. This prompts the need for minimum-harmonisation, combined with a European trustmark.

Keywords: European private law, Distribution of competences, Doorstep selling, Online shopping, Trustmarks