Consumption without Borders? Competence Attribution in EU Consumer Law and the American Federal Model

• Main Author: Isabel Lamers
• Format: Article
• Language: English
• Published: Ubiquity Press 2013-01-01
• Series: Tilburg Law Review
• Subjects: consumer protection; constitutional doctrines; harmonization; internal market; implied powers; competence attribution; Commerce Clause; Directive on Consumer Rights; ECJ; direct effect; regulatory gaps; Open Method of Coordination
• Online Access: https://tilburglawreview.com/articles/41

With an increasingly integrated common market, consumer protection in the EU obtains added relevance as consumers are being exposed to greater risks. Yet, national consumer laws can impede market integration, whereas EU-wide protection is far from being consolidated. The contention on the extent of harmonization can be drawn back to the question of competence allocation: how much regulatory autonomy should be transferred to the Community and how much discretion should be left to the Member States? In this paper, a comparison to the US federal model serves as a tool of analysis in determining the most suitable centre-state relationship in the EU governance of consumer law. Thereby, the focus lies on structuring competence allocation through constitutional doctrines so as to ensure consumer prediction that is coherent and predictable. It is argued that while EU Member States should be left with more regulatory autonomy in the meaning of reducing negative harmonization and ECJ excessive intervention into domestic situations, the Community level should have more rigorous policing powers curtailed only by subsidiarity and proportionality. National rules are important to account for diverse national preferences, yet Community competences should be enhanced to ensure cohesion. Finally, the method of coordination can provide an additional allocational mechanism, especially for sensitive policy areas.