Brexit and Consumer Protection

European Union consumer rights

Consumer Protection Law is a shared competence between the member states and the EU. Article 4.2 of the Treaty on the Functioning of the European Union so provides. However, once EU legislation has been passed member states may not act contrary to it.

Traditionally, the EU acted in consumer protection on the basis of minimum harmonisation. The UK has argued against maximum harmonisation. In recent years, the EU has taken a maximum harmonisation approach.

The EU has harmonised many of the key consumer protection rules. The harmonisation of laws seeks to provide common rules to facilitate the internal single market. The European Union has provided legislation in various areas enhancing consumer rights.  Common consumer protection rights apply in these fields throughout the entire European Union.  This facilitates a level playing field.

The EU has adopted a number of important consumer protection measures. In particular, the unfair contract terms and the unfair commercial practices legislation derives from EU directives. Consumer law has been enhanced by the directive on remedies and on measures to coordinate enforcement between member states.

There are also specific consumer protection rules in legislation in several areas including, for example, in relation to airlines, financial services.   The following deal with certain general consumer protection rules.

The ETFA  states participate fully in EU consumer programs. The Icelandic and Norwegian Consumer Councils belong to the European Consumer Centres Network. Consumer protection is covered by the EEA agreement. Consumer protection measures are incorporated into the Agreement on an ongoing basis.

Recent Developments

The Lisbon Treaty, Article 12 places a duty on the EU to take consumer protection requirements into account in defining and implementing EU policies.

The insertion of EU competence in the field of consumer protection led to the establishment of the Director-General for Health and Consumers within the EU Commission.

The EU Consumer Rights Directive 2011 seeks to simplify and provide uniform consumer rights when buying goods and services.

The EU Commission’s  Consumer Agenda 2014 to 2020  seeks to improve consumer safety so that consumers are protected from serious risks and threats. Its main objectives are

  • improving consumer safety,
  • protecting consumers from serious risks that they cannot tackle as individuals.
  • enhancing knowledge so that consumers can make choices based on clear, accurate and consistent information
  • improving implementation; stepping up enforcement and securing access to redress.
  • aligning rights and policies to economic and societal change.

The Charter of Fundamental Rights as well the Treaty on the functioning of European Union guarantee a high level of protection of consumer rights.

UK and Consumer Protection

In order to export goods or services to the EU, the UK would have to meet equivalent standards.

Following a series of UK consultations and reviews, the Consumer Rights Act 2015 incorporating the EU requirements while modernising and overhauling consumer rights law.  The Consumer Rights Act covers goods, services, and digital content.

A significant amount of UK legislation on consumer protection is EU derived. This includes laws on product safety, unfair practices, misleading marketing practices and food safety.

At present, UK and EU consumer laws are highly intertwined. It is likely that broadly common standards will be maintained. UK business will have to comply with EU consumer legislation, in supplying good and services to residents in EU states.

The most comprehensive recent legislation from the EU is the Directive on  Consumer Rights 2011. This has been implemented by regulations in 2013.

Principal EU Consumer Measures

The EU may adopt consumer protection measures by qualified majority. It may legislate under specific provisions in relation to the consumer protection. It may legislate by its powers in relation to the single market.

The most significant legislative measures in the consumer protection sphere cover

  • 1990 package travel;
  • 1993 unfair contract terms;
  • 1997 distance selling;
  • 1999 consumer sales and guarantees;
  • 2001 tobacco products;
  • 2001 medicinal products for human use;
  • 2001 general product safety;
  • 2002 food safety;
  • 2003 tobacco advertising and sponsorship.
  • 2006 cooperation of national consumer protection authorities.
  • 2005 unfair commercial practices
  • 2006 nutrition and health claims on food
  • 2008 consumer credit
  • 2008 timeshares
  • 2009 injunctions for the protection of consumer interests
  • 2011 provision of food information to the consumer
  • 2011 general consumer rights.
  • 2012 roaming on public mobile communication networks
  • 2013 online line dispute resolution for consumer disputes
  • 2013, alternative dispute resolution for consumer disputes.

Sectoral Measures

Sectoral measures have been made pursuant to the harmonising provisions of the European Treaties and compliment general EU consumer protection legislation. There are directives in the areas of

  • electronic commerce
  • distance selling of financial services
  • general services directive
  • internal market in electricity
  • internal market in natural gas
  • audiovisual media services,

In the area of transport, there is regulation on

  • air passenger rights,
  • rail passenger rights,
  • rights for passengers traveling by sea and inland waterways,
  • rights for passengers travelling by bus and coach.

In the area of justice, there is

  • provision for recognition of judgments which deal specifically with consumer contracts and favour the consumer.
  • the Europeans Small Claims Procedure.
  • provision for mediation in civil and commercial matters,
  • provision for the law applicable to contractual obligations in consumer cases.


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