The way forward in European consumer contract law: Optional instrument instead of further deconstruction of national private laws

Abstract

This chapter has two purposes: first, to characterise briefly the unacceptable situation of current European consumer contract law and the rather unconvincing attempts by the EU institutions to improve matters; and, second, to sketch and evaluate alternatives to the main approach hitherto pursued by the EU legislative bodies, that is, the approximation of laws by directives. As a result, the way forward is seen as a combination of a framework directive and an optional instrument. This would permit the slowing down of the deconstruction of national private laws and, at the same time, speed up the further development of the internal market. European consumer law has had an enormous effect on national laws over the last thirty years. Until now, this has been mainly positive for consumer protection, the creation of the internal market and a more competitive business environment. However, the development of European consumer law and consumer contract law, in particular, has now reached a stage where it really endangers the coherence and operability of national private laws. The reasons for this are mainly technical. European consumer contract law is not very coherent and its interplay with national law has become rather complicated. Lawyers and courts may struggle to apply it correctly; it is becoming more and more doubtful whether these problems are justified by the aims pursued; and it is beyond doubt that the situation is far from ideal. © Cambridge University Press 2010.