The Consumer Rights Directive : Improved as a cross-border-only Regulation and toward a European Consumer Code influenced by the Common Frame of Reference?

Sammanfattning: The proposal of the European Commission for a Consumer Rights Directive in 2008 marked the culmination of the review of the acquis communautaire in the area of consumer contract law within the EU, launched in 2003 with the Action Plan for European Contract Law. Even though it was not initially restricted to consumer contract law, but concerned the contract law as a whole and targeted toward achieving a more coherent regu-latory framework without making a sharp distinction between B2B and B2C transactions, the final version of the Consumer Rights Directive has the specific aim of creating a real business-to-consumer Internal Market. This is to be achieved through the merging of a number of Directives in the area of consumer contract law into a single horizontal instrument that regulates common aspects in a systematic fashion through maximum harmonization, and will result in simplification and completion of the existing regulatory framework. The three main reasons as to why the Commission want to intervene in the consumer contract law of the Member States is, in other words, that differences in national legislation hinder the development of the Internal Market, that maximum harmonization would put an end to the legal fragmentation in the area of consumer contract law and that the EU is in need of a higher level of consumer protection. These three arguments put forward by the Commission as to why the European legislator should be active in the area of consumer contract law are, however, not motivating such far reaching interventions in the national legislation of the Member States and does not manage to find equilibrium between the competitiveness of businesses and the protection of consumers. Rather on the contrary, maximum harmonization does not seem to put an end to legal fragmentation at the same time as it is hard to reconcile with consumer protection. Legal fragmentation is, furthermore, far from the main reason as to why domestic trade has increased more than international trade within the EU during the past years. In the Green Paper on the Review on the Consumer Acquis, the Commission presented two options for the scope of the Consumer Rights Directive of interest for this Master’s thesis. The first was a horizontal instrument of maximum harmonization applicable to both national and international consumer transactions within the EU and the second a horizontal instrument limited to cross-border contracts. Whereas the first option was the one finally chosen for the Consumer Rights Directive, it seems as if the Commission neither considered the second option nor the alternative of applying a Regulation instead of a Directive in depth. The instrumental measure of a cross-border-only Regulation is more in line with the with the proper interpretation of the constitutional framework that is the European Treaties, and would have contributed to a general im-provement of the Consumer Rights Directive when it comes to the effectiveness of reaching the overall objective. The main reasons for this are that it is effective straight away, only affects them wishing to participate in the Internal Market and thereby take into consideration the different national preferences of the Member States at the same time as it is considerably less costly. Parallel legal regimes therefore seem to be even more in line with the objective of simplification of the regulatory framework of the EU than a Consumer Rights Directive of maximum harmonization. The problems associated to the definition of a cross-border-only Regulation can, together with the private international law issues, be solved through the use of Transnational Commercial Law and the Rome-I Regulation. The instrumental measure formally adopted by the Member States on the 10th of October 2011 was, however, a horizontal Consumer Rights Directive of maximum harmonization which is to be transposed into the national consumer contract laws by the 13th of December 2013 and applied in all Member States no later than the 13th of June 2014. The specific aim of creating a business-to-consumer Internal Market along with the narrow personal and broad substantive scope make it well suited for the plausible development of that it is heading toward a European Consumer Code. This is especially so if it is allowed to get influenced by the Common Frame of Reference, which contain all characteristics of a European Civil Code and therefore has a great potential of contributing in making European contract law more coherent overall and bridge the sharp distinction between B2B and B2C transactions. Since the Commission has not made its intentions clear in this matter, it is for the future to reveal whether this will become reality.