The Successes and Shortcomings of the German Consumer Protection de lege lata and within the framework of the New European Guidelines - TÜRKİYE HUKUK

The Successes and Shortcomings of the German Consumer Protection de lege lata and within the framework of the New European Guidelines

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Prof. Dr. Markus Artz / Universität Bielefeld – Germany

I. Introduction

Like in each EU Member State, also the German private law on consumer protection is characterized by the implementation of European directives. As important legal acts are to mention, in a chronological order, the Doorstep Transaction Directive (1985), the Unfair Contract Terms Directive (1993), the Distance Selling Directive (1997), the Directive on Sale of Consumer Goods (1999) and the Consumer Credit Directive (2008). Replacing the Doorstep Transaction Directive and the Distance Selling Directive, the need of implementation for the Consumer Right Directive, which is adopted but not yet published in the EU Official Journal, is discussed currently.

Initially I want to illustrate, how European law was implemented in Germany and how German consumer protection law developed in the last two decades. Surely many positive developments can be noted here (II.)

In the second part I want to treat some typical problems, which recently occurred above all in the sale of goods law (III.).

II. The development of the German law on consumer protection
Primarily I want to point out the guidelines of the development of private consumer law in Germany:

1. No consumer protection code
In Germany one refrained from enacting a separate civil code on consumer contracts, i.e. there is no consumer code in private law.

2. Establishing statutes
At the beginning European directives were implemented by issuing statutes for each particular directive, e.g. there was a Consumer Credit Statute and a Distance Selling Statute, which stood beside the BGB.

3. Introduction of general provisions on consumer protection
Launching distinctive statutes, at the end of the 90s the single provisions on consumer protection were comparable to a patchwork. Afterwards one was focused on trying to work out general rules of private consumer law.

Certainly this can be regarded to be the first success of German consumer protection law. Hereby general definitions for the terms of businessman and consumer were formulated and especially the provisions of the right of withdrawal were unified. The general regulation of the right of withdrawal succeeded within the BGB and not in single statutes on consumer protection. The unification of the basic rules of the right of withdrawal can be seen as the main step to a coherent private consumer law.

Unifying basic rules of consumer protection, the German system may be seen as an example for a current European development, because the unification of rules was one of the European Commissions main aims, when the proposal of the Consumer Right Directive was presented in October 2008. Covering not only specific sectors, but also general provisions of consumer protection, the proposal is also called “horizontal-directive”. Nevertheless one has to emphasize, that this comprehensive approach did not become prevalent, as only a very narrow proposal was adopted in October 2011.

4. Integration of the consumer protection statutes within the BGB
As a consequence of the implementation of the Directive on the Sale of Consumer Goods on 1st January 2002 the systematic of consumer protection law deeply changed. Having decided to repeal all the single acts, the legislator integrated the provisions on consumer protection in the main civil code.

In retrospective this date can be seen as a turning point as consumer specific topics were paid more attention by science, education and practice. While in the 90s only a few exotics in private law were focused on the issues of consumer protection, consumer law developed to a highly recognized discipline. In the meanwhile, many Universities offer lectures on consumer law and consumer specific topics are often part of the final examinations. Since this year even a chair for consumer protection law has been established at a German University and also in practice this field of law has reached great importance.

5. Removal of certain provisions
Whereas at the turn of the millennium the legislator was anxious to integrate all consumer protective provisions into the BGB, nowadays the contrary development is to be observed.

For the implementation of the new Consumer Credit Directive the chosen technique was one of removing certain provisions, e.g. concerning the duties to furnish information, out of the BGB. This might require consulting different statutes while solving a single problem, which sometimes seems a little complicated.

Whether or not this tendency of fragmenting the consumer protection law will be continued remains to bee seen – the implementation of the Consumer Right Directive will show.

III. Uniform law on sale of goods for business as well as consumer contracts

1. General law on sales of goods
For implementation of the Directive on Sale of Consumer Goods the German legislator chose to incorporate the provisions of the directive not only as far as consumer-sellers contracts are concerned, but to remodel the entire law on sales of goods in a way that it mainly complies with the directives requirements. Thus, according to the German sales law there is for example an entitlement to supplementary performance if the purchased good was defect not only for consumer contracts – this is if an consumer buys a tangible movable item from a seller in the sense of the directive. In fact, the entitlement to supplementary performance, which originates from the directive, is also granted if there are only consumers or even only businessmen concerned.

Therefore one might say that the Directive on Sale of Consumer Goods had an impact not only on the entire sales law, but also on the general provisions concerning impairment of performance.

2. Specific provisions concerning the sale of consumer goods

Apart from various provisions, which have their origin in the implementation of the Directive on Sale of Consumer Goods but apply for the entire sales law, there is a small section in the German sales law which contains specific provisions for the sale of consumer goods. The essential provisions in this case are the ones about the reversed burden of proof in case of disputes concerning the faultiness of the item at the time of passing on the risk and above all the one about the mandatory application of the legal statutory rights.

3. The shortfall in implementation and its impact on the general sales law

In the passed months and years the ECJ has attested several times that the German law did not implement the Directive on Sale of Consumer Goods faultlessly. As examples two cases shall be mentioned.

Great stir was caused by the ECJ ruling in the “Quelle”- case of 17th April 2008. In this case the ECJ decided that the consumer has not to compensate for the use of defective goods in case of their replacement with new goods. According to the German law on the other hand the seller was entitled to demand such compensation from the consumer.

In a current decision of the 16th June 2011 the ECJ ruled, in the case that a defective good was assembled according to its purpose into another object the seller has to bear the costs for the disassembly as well as the costs for the new assembly of a product free of defects. Roof tile or paving tile may be mentioned as an example. Here again, the German law was not in accordance with the directive.

As far as these decisions are concerned, the reaction of the German legislator is unambiguous. Even though the concerned provisions where part of the general sales law which were also applicable to contracts only between consumers or businessmen, the change of law was limited to consumer contracts. At least regarding the first case this already came true and in respect of the second case this is highly likely.

This fact surely can be considered a major weakness of the German sales law. In a review almost exactly ten years after the implementation of the Directive on Sale of Consumer Goods the decision to implement the directive as part of the general sales law has to be seen critical. The idea of an uniform sales law for all market participants suffers by the fact that every now and then there have exceptions to be made which privilege the consumers but can not be applied upon businessmen for economic reasons.

IV. End

Despite the just mentioned deficits, the consumer protection law has positively developed during the past years. Yet it will be interesting to see the implementation of the new Consumer Right Directive and the further development and later acceptance of a common European sales law which is supposed to be enacted as a regulation.

*Bu metin, 24-25 Kasım 2011 tarihinde gerçekleştirilen Uluslararası Tüketici Hukuku Sempozyumu‘nun 1 . Gün 3. Oturumunda Prof. Dr. Markus Artz tarafından sunulmuştur.

Markus Artz

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