“Ever tried. Ever failed. No matter. Try again. Fail again. Fail better.” Beckett, Worstward Ho (1983)
Beckett, Worstward Ho (1983)
This article synthesizes a number of the findings and themes emerging from the various case studies presented about the efficacy of the transplantation process of the EU consumer acquis in some of the EU accession and new Member States. Specifically, the article examines the process of incorporation through the lens of the domestication of the consumer rules either through the making of the local consumer laws or their subsequent enforcement in the case study jurisdictions. The overall conclusions from the case studies are that accession pressures are an important impetus for legal reform in consumer law, that there is limited tailoring of the rules in their transposition, and that there is slow take up by local actors in the resolution of consumer problems. The article suggests that getting it right in the law-making process in tailoring the rules to local needs or the extant local law may not be crucial for their subsequent efficacy, both because deliberations about the efficacy and fit of the rules may be irresolvable ex ante and because the relevant collocutors often do not exist at the time of original enactment of the consumer laws. Yet if the transplanted rules can be enlivened through local institutions as spaces for contestation of the rights and responsibilities that arise under consumer law, they can be domesticated or contextualized precisely through processes of ongoing contestation. From that perspective, it is institutional diversity in implementation in different jurisdictions, remedial hybridity and EU monitoring of the efficacy of local solutions that can help unblock suboptimal local outcomes.
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Note that the (largely) functional question of the style of social control over economic life can be conceptually distinct from the (largely) historical question of legal origin.
Thus, Rodrik (2000) specifically criticizes the use of developed nation templates and best-practices in the process of institution building precisely for this reason.
I thank Hans Micklitz for this point.
In the context of post-conflict or divided societies, an interesting counter-point is provided by the literature suggesting that “consumerism” is a source of political possibilities and a force for overcoming the politics of division on bases such as class or ethnicity (Whitman 2007, pp. 397, 343).
In the essay quoted earlier, Veblen observed that an evolutionary economic account would be “the theory of a process of cultural growth as determined by the economic interest, a theory of a cumulative sequence of economic institutions stated in terms of the process itself” (Veblen 1898, p. 393).
Note that evolutionary in this context can be intended in its ordinary relatively non-technical meaning of the identification and following of change over time. However, to the extent that there are mechanisms for generating (or at least maintaining) diversity among different implementation institutions, as well as mechanisms for the identification and selection of improvements from among those, then it can also have a more focused interpretation (cf Granovetter 1985, p. 503).
By contrast, Josipović reports a form of peer review by an expert group charged by the EU Commission to assess the already enacted provisions on collective action in the Croatian act, with proposals for amendments to resolve existing shortcomings.
Case C-472/10 Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt., 26.4.2012 (CJEU).
Case C-415/11 Mohamed Aziz v Catalunyacaixa, 14.3.2013 (CJEU).
Such flexibility might be provided by instruments such as the EU Commission report evaluating the operation of the UCPD, mentioned by Cseres and Balogh and Namyslowska, though both contributions suggest a greater focus on the enforcement deficiencies at national level, as opposed to the deficiencies of the EU instrument itself in the Commission’s first evaluation report.
I thank Hans Micklitz for this point.
On the successful use of the Ombudsman institution in Scandinavian countries for the implementation of the consumer acquis see the work of Bakardjieva Engelbrekt (2003).
Karanikić-Mirić suggests that these might be the reasons for which an on-going EU consultancy project on consumer policy in Serbia is suggesting the broadening of administrative powers and competences, including those of the inspectorates. Consistent with the theme of questioning of existing arrangements, Fejős reports a process of review of the role of that institution.
Karanikić-Mirić notes that the consumer law curriculum in university legal education continues to be non-existent.
The question of the decision-making, punitive, and remedial powers of administrative agencies appears to have presented constitutional problems in a number of the states of former Yugoslavia, and at least with respect to the competition agency (if not others), jurisdictions such as Serbia and Croatia have crossed the rubicon (Fejős).
On this point, a number of authors have noted the significance of Directive 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection.
One might also pose the reverse question about the CPCA’s pursuit of the case against the principal electricity distributor in Albania discussed by Djurović: apart from its consumer protection aspect, the case surely also touches on the problems of funding for the USO, investment in the network, as well as security and stability of supply, which may or may not be considered by a consumer agency.
Tools such as the database of unfair contract terms as found by courts in different jurisdictions mentioned by Gavrilović can aid such processes.
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The author wishes to acknowledge the support of the ERC funded project on European Regulatory Private Law hosted at the EUI Law Department in the research and writing of this article. I am grateful to Hans Micklitz and a journal referee for detailed comments on an earlier draft, but the usual disclaimer applies.