Regulatory techniques in consumer protection: A critique of European consumer contract law

This article forms part of a special edition of the Common Market Law Review.

Publishers Abstract:
The Draft Common European Sales Law (CESL) incorporates four of the most important consumer protection techniques that have been widely used in European Contract Law. Unfortunately, these techniques' superficial appeal does not withstand economic logic. This article argues that European Contract Law in general, and the CESL in particular, are far less likely to succeed in protecting consumers than lawmakers and commentators believe, and that the techniques they commonly employ may bring about unintended consequences and hurt consumers.

The four consumer protection techniques commonly employed in European contract law are mandatory pro-consumer arrangements, which must be part of every consumer contract; mandated disclosure; regulation of entry to and withdrawal from contracts; and pro-consumer default rules and contract interpretation. The next four sections examine each of the four methods in more detail. The authors focus on the methods by which protective interests are promoted and evaluate the likely effects of these methods vis-a-vis their objectives.