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Consumer Law, Droit de la Consom-mation, Verbraucherschutzrecht – Joker or Concept?
The dominating “Consumer law” has different appearance. While in English and partly in German it refers solely to the person (consumer, Verbraucher) in French it is denominated as “the law of consumption” (droit de la consummation) while the German legal culture refers to it mostly as “consumer protection law” (Verbraucherschutzrecht) which is focused on the need for protection. While consumer lawyers usually pay little attention to these differences using these terms as synonyms, they in fact express quite different concepts underlying such law which is technically defined as a law reserved for those who are not acting professionally or commercially. Anyhow all expressions relate to consumption which is a process and neither an object nor a person. A consumer seems to be a person which consumes (consumer law) and it is such a person only which needs protection (consumer protection law). The French denomination therefore seems to be right.
If this is right the raison d’être of consumer law must lie in the structural weakness of consumption as such. An even superficial glance at consumer law reveals that this kind of protection has not been incorporated. Nowhere the process of consumption is directly addressed and even less its weakness. The dispute in commercial law whether consumption or consumers need protection has no foundations in the law. It is neither nor. Neither the person nor the activity is addressed by what is called consumer law. But this does not hinder legal science to develop even sociological concepts like role theory to justify consumer protection.
The notion “consumer” as it is defined in international trade law is only a technical means for regulation. Whether it protects or leaves certain behavior unregulated has not to do with “consumption” but with the intention to “protect” people under certain conditions in specific circumstances. In this regard consumer law is not alone. Even within the process of consumption the notion consumer competes with other technical concepts for protection like debtor protection law, anti-usury or anti-gambling rules, minimum wages for dependent wage workers, rent restrictions, protection against early termination in long-term contractual relations, the provision of discharge insolvent enterprise or households, legal guarantees for the possibility to make an appropriate “use” of things and services. As we have pointed out in our European Social Contract Law approach, especially longterm contracts in labour and rent have been the target of protective law.
The history of law with regard to the protection of the weaker part is much older than contracts in market economies. The ideology of consumer law, paradigmatically expressed in the much cited Kennedy resolution on consumer protection, has to be turned upside down from its head to its feet: it is not the consumer that requires protection but it is the need for protection which triggers consumer law. It has no specific reason compared to other protected legal areas in labour, housing or social long-term relations in modern capitalism.
Pretending instead that the protection of consumers is only understandable under market conditions and markets relates underlying principles of justice to capitalist conditions.Consumer weakness is reduced to a specific capitalist weakness. This would normally trigger the Marxist quest for the overhaul of capitalism. Since those societies who claimed to have done so showed the most accentuated weakness of consumption the opponents do not have much to argue. The solution of consumer weakness has to be found within the market economy. If they would stop here they would certainly ask the eternal question of justice that weakness cannot be tamed with the weak and the poor but where weakness comes from, This is untamed power. Thousands of years it was obvious that the solution to poverty was lying with the rich, the solution to weakness with the strong, the solution to the outcasts with those who dominate the system. Protection was taming its power, making them responsible for the whole of society, preventing misuse and implementing the most noble element of justice: the middle as Aristoteles put it. The ideology of consumer protection has turned this round. If capitalism cannot be blamed for the weakness of consumer since everybody has become a consumer, if markets are free and equal by definition the reason of weakness has to be found with the weak, the poor, the disfavoured and outcasts themselves.
This is why role theory, homo oeconomicus or the more recent concepts of behavioral finance could flourish. Protective law can be claimed a result of the deficiencies of modern consumers. This does not explain but hinder a deeper insight into the true reasons of specific protective law. They replace historical concepts of protection adapting them to the needs of present perceptions of economics. It may come as no surprise that in the end protection of consumers turns out to become a means to protect a specific market driven form of distributing goods and services to those who need them.
The so-called information model in consumer protection is thus the rational and dominating answer for the defense of individuals and needs against all kind of economically exercised power. Economists know that this is exactly what a stabilization of the market economy requires: transparency, information, competition and low transaction cost. The last wave in consumer protection especially visible in the omission of the word protection in consumer law has consequently reduced this area of law to commercial contract law in B2C relations. Thus especially the EU with its newly found maximum harmonization and home country control principle has shown that consumer law can be radically anti-protective when i.e. National usury ceilings have been undermined.
This is no accident. The EU (the WTO, CETA) have developed markets not states. It has added a globalized economy to still national political member states. The bourgeois overtook the role of the citoyen without the democratic limits to his power. Its law blames personal decision for consumer weakness in the market economy. The EU-remedies cure incomplete human demand instead of taming the misuse of power by suppliers.
Consumer lawyers follow this path where they use the consumer as a concept instead of a technical means to define the area of application of protective law. It also expels those remedies like usury laws from consumer protection who have the deepest historic roots in law. It also hinders to continue the legal debate about justice. It alienates consumer law from labour, tenancy and other protective areas of the law which could teach that the demand and information amelioration model is rather ridiculous than effective where the true effects of such remedies like the right of withdrawal, information sheets and obligatory advice are monitored. The present shift into a two-third society
Instead of analyzing consumer protection in the light of the provided toolbox for remedies we should look at the other side and the legal history of its regulation. There we find such phenomena which today are labeled as consumer protection in many different concepts to guarantee the usefulness of generally necessary things and services. Especially labour and tenancy law but also warranties in sales law show that it is the use of homes, goods, capital and services which has to be protected by law. The threat of domination is not linked to markets. Trying to get all for nothing has always been the challenge for justice. Consumer law or droit de la consummation should be analyzed less with regard to consumption than to protection which broadens our view to general contract law through the integration of what we have called life time contracts. Consumer protection can neither be explained by EU nor international commercial law. It has to learn from the cultural wealth of post Roman private law from usus fructus to use-related contract law. This would lead us to the insight that market remedies for contractual problems mostly cure problems which stem from market mechanisms.
The more general question how human needs can best be served goes far beyond. Where the law provides power for the stronger party the shelter for the weaker party is a necessary reflex of it. In the actual phase of capitalism discrimination has moved from labour to consumption. The Poor Pay More has become a general principle of globalized market economies driven by its financialisation. Historically we have a well-developed concept to cope with it: usury. But due to the ideological reduction of protection to “consumer law” we have given up the rich history of it. It seems to appear in new clothes. Responsible credit for example with its reference to the necessity of providing “productive use” of capital, goods and services resumes the interdiction of usury.It reveals more about the foundations what is called consumer protection today. It is more on power of those who have than about weakness of the Have-Not.
In the second draft of the German constitution the notion “consumer protection” was abandoned and replaced by the concept of “control of the misuse of economic power”. This was wise hint to think beyond market economy. Markets are only one tool to cope with the misuse of power. The law has more concepts for protecting the sustainable use of goods and services. Returning to its historical wealth instead of creating another artificial prison for those who deal with “consumer law” defined by such laws where the word consumer has been used by accident will free from ideological burdens. We should call our discipline “consumer protection law” instead of arbitrary “consumer law”. We should focus on protection instead of consumption and widen our view to such law which protects human needs and their “quest for happiness” under different technical concepts as users, patients, clients, workers, tenants etc. Labour, tenancy and service law as well as the ancient law of usus fructus would help to stop the erosion of consumer protection through consumer law.

ID: 49156
Author(s): UR
Publication date: 19/07/17

Created: 19/07/17. Last changed: 19/07/17.
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