Is Chinese law enforcement a model for Europe? – NO!

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The story is well-known to the readers of this journal. Apple is promoting its commercial guarantee in Europe which costs the consumer around 250 Dollar per year. European consumers are entitled to a cost-free legal guarantee for a minimum of the first years. This is laid down in the Directive on consumer sales. Apple is obliged to inform the consumer about his rights. This is clear from another piece of EU law aiming at laying down standards on marketing practices. There are lots of uncertainties on the legal side which result from the fact that the two pieces of law are not really interlinked that the first lays down minimum standards whereas the second fully harmonizes European law in the marketing sphere. On top of this the 27, now 28 Member States have to implement the European Directives into their national laws via separate legislative measures. The complexity is a matter for lawyers and politicians. It is Europe as it is. United in diversity.

My concern is a different one. Altroconsumo was the first consumer organization in Europe which took legal action against Apple. Via BEUC – the Bureau Européen des Unions de Consommateurs which is an umbrella organization of national consumer organizations – more than 10 national consumer organizations took action against Apple in their countries. It is here where the problem begins. Let us recall: we have two different pieces of legislation – one in the field of contract law, the other in the field of unfair commercial practices. So a couple of the consumer organizations relied on contract law, the others on unfair commercial practices. The logic behind? What suits best to the national legal environment! The result is different interpretations around Europe on what exactly is required under contract law and unfair commercial practices.  In theory this would be a matter for the European Court of Justice which has the authority to provide guidance to the interpretation of EU law. So far none of the courts involved in the Apple case seems ready to refer the problem to Luxemburg. And even if this would happen, the ECJ would need all the experience from the other national legal orders to get the full picture – at least in theory. Such a search for full knowledge is not really foreseen in the so called preliminary reference procedure which paves the way for national courts to the European Court of Justice in Luxemburg.

But this is only one side of the coin: national laws differ in the way the consumer laws are enforced, in particular when it comes to the protection of the collective interests. Some of them rely on consumer agencies, these can be institutions just dealing with consumer law and nothing else, others have set up agencies which unite different areas of law. Consumer law is then part of a broader field of competencies. Last but not least there are the consumer organizations which should have standing to defend the consumer interest in and before agencies and courts. 28 member states, 28 different institutional settings for consumer law enforcement. Even for a specialist the procedural details and the inner mechanics are hard to overlook. The common legal means is the so-called action for action – a stop order mechanism, which sets an end to illegal practices. What sounds easy is again very difficult, as there is no common understanding of what ‘injunction’ means.

So how to come to a joint approach against the incriminated practices of Apple? It looks simple: the consumer organizations have their umbrella organization BEUC under which they can co-ordinate, what they did – to some extent , the national consumer agencies may co-ordinate their enforcement strategies in a particular committee which was set up in order to get to grips with transborder consumer law enforcement issues. This is not really the case here, as Apple targets each member state separately and be it simply by the respective language. This means that more than 20 versions of the commercial guarantee are available and should be compared as there might be differences in the language versions. So consumer agencies have no forum for purely internal matters. And even if they would use the  committee dealing with transborder complaints, they would have to involve the consumer organizations which have their own view not necessarily in compliance with the one of the public agencies.

In short – consumer law enforcement in Europe is difficult to say the least, burdensome, messy, complicated, public and private institutions have to co-operate, different opinions, different laws, different interpretations, different court decisions. Where is the solution? Is there a solution?
On 3rd April 2013 the New York Times published an article under the heading of ‘After Uproar in China, Apple issues apology’. The insightful consumer will easily recognize the common denominator in Chinese and European consumer complaints. In China, however, the communist party launched a campaign against Apple after sales services, accompanied via media attacks in the press and investigative reports of the Chinese television. In a couple of days Apple changed its practice. The notice does not tell us whether Apple did change its practice and accepted the two years free of charge legal guarantee in China. Let us assume for a moment that the centrally co-ordinated attack via the media and political institutions led to the desired result – compliance with a cost free two years guarantee.

Is it this what European consumers are dreaming of? A central European Agency having the power and the legitimacy to implement EU consumer law with reference to court, without discussion of the legal intricacies, without a right to be heard, just through the joint forces of the political communist party, the media and the competent enforcement authorities?

I hope NOT. Europe and European integration is a painful exercise, with imperfections, with disappointments, with anger and dismay – but in an open democratic procedure. The solution is not centralization – the call for the omnipotent power – the superagency which has always the best of the peoples – here the consumers in mind – but better and more efficient co-ordination between statutory agencies and consumer organizations, in the member states and across the borders. In such a perspective we could even think of a member state court binding other member states courts at least as long as the ECJ has not yet decided.

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Since 2007 Professor for Economic Law at the European University Institute, Jean Monnet Chair of Private Law and European Economic Law at the University of Bamberg, Germany on leave. Head of the Institute of European and Consumer Law (VIEW) in Bamberg. Studies of law and sociology in Mainz, Lausanne/Geneva (Switzerland), Giessen and Hamburg. Consultancies for OECD in Paris, UNEP Geneva Switzerland/Nairobi Kenya and CI (Consumers International) Den Haag Netherlands/Penang Malaysia. Study visits at the University of Michigan, Ann Arbor, Jean Monnet Fellow at the European University Institute Florence, Italy, visiting professor at the Somerville College at the University of Oxford, co-founder of the Centre of Excellence at the University of Helsinki. Holder of an ERC Grant 2011-2016 on European Regulatory Private Law. Consultancies for ministries in Austria, Germany, the UK, the European Commission, OECD, UNEP, GIZ, non-governmental organisations.

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