Global Expert Community: The sustainability and digitalisation imperatives shaping EU Consumer Law

In recent decades, the European Union has become a major driver behind the development of consumer law. Though not formally recognised as such, it has managed to establish a kind of ‘consumer code'. This code can be divided into three broad areas. The first, composed of the modalities of contract conclusion, of the control of unfair terms and unfair commercial practices. The second is a special part which deals with particular types of consumer contracts – sales, consumer credit travel, time sharing and product liability. And the third deals with the enforcement of individual and collective consumer rights within the nation state and cross-border in the EU.

Currently, the EU consumer law acquis finds itself under pressure from two sides – from the need to find an adequate path towards sustainable consumption, and from digitalisation. The European Commission has set into motion a number of proposals aimed at ‘greening’ consumer law. These proposals will in all probability be adopted in the year 2024. The major regulatory tool is improved information on sustainable products and services. This will enable the consumer to take a ‘responsible transaction decision’ (as it’s termed in EU jargon). Here, EU consumer law lags behind the UN Guidelines, as well as behind nation states around the world who began to tackle un-sustainable consumption long before the EU.

Taking up less of the limelight is the potential impact of the EU digital policy legislation on consumer law. These include of the 12 different regulatory measures, such as the Digital Market Act, the Digital Services Act, the Data Governance Act, the Data Act and the upcoming Artificial Intelligence Act. Whilst this huge regulatory programme is still underway, and whilst many administrative measures meant to complement the EU digital policy legislation are not yet in place, there is a growing awareness that major change to European Consumer Law is coming. Two phenomena stand out. The first is fragmentation of the legal system through the replacement of the consumer vs. trader/supplier, through the ‘affected’ and the ‘economic operator’. The latter is broken down into ever more fine-grained categories, provider, deployer, manufacturer, dealer, importer, representative, small and medium sized companies. To each of them, the EU digital policy legislation associates tailor-made obligations. It is by no means clear how this fragmentation affects the consumer law aquis. The second phenomenon is the rise of due diligence obligations. EU law imposes obligations on different economic operators, which they must concretise and then ensure compliance to. Whether and to what extent the pending initiative of the European Commission on ‘digital fairness’ will lead to revisions of the consumer acquis is far from clear. It will be for the next European Commission and the next European Parliament to decide on this matter together with the Council, a decision unlikely to take place before 2025.