On the Transformations of European Consumer Enforcement Law: Judicial and Administrative Trialogues, Instruments and Effects
Fabrizio Cafaggi and Stephanie Law (eds), Judicial Cooperation in European Private Law, Edgar Elgar, 2017 (Forthcoming)
28 Pages Posted: 5 Dec 2016
Date Written: November 15, 2016
The enforcement of consumer law is characterized by a combination of judicial and administrative regimes that involve European and national institutions. The principle of sincere cooperation, enshrined in Art. 4(3) TEU, imposes the engagement of institutional dialogue based on loyalty. Increasingly, the Charter of Fundamental Rights (CFR) and, in particular Art. 47 CFR, plays a role in shaping enforcement both before courts and before administrative authorities exercising enforcement power. The separation between rights (at the EU level) and remedies (at the Member State level) has disintegrated, driven by the principles of equivalence and effectiveness.
Fundamental rights and in particular the right to fair trial and to effective judicial protection are increasingly influencing both administrative enforcement and the scope of judicial review.
The role of national courts as enforcers of EU law has long been recognized. However, the modes of interaction between administrative and judicial enforcement has been initially neglected; in recent years, increasing attention has been devoted to the coordination of different enforcement mechanisms, including private justice. This contribution examines the weaknesses of institutional design of the interaction between courts and administrative authorities exercising enforcement powers, broadly defined. Institutional dialogue between European and domestic enforcement bodies has been an important driver of legal innovation in European consumer law. The different levels of enforcement are not separate but rather interact continuously and often strategically.
This chapter addresses and compares the different forms of institutional dialogue that have characterized judicial and administrative enforcement in consumer law and the potential role of Art. 47 CFR on the right to effective judicial protection. It shows that there is an erosion of the principle of procedural autonomy, in respect of which fundamental rights and general principles play an increasing role in defining the architecture of consumer enforcement. It concludes by analyzing how judicial and administrative enforcement of consumer law may be recombined in the light of the Charter’s impact. The shift from the multilevel approach to the dialogical approach forces us to rethink how national and European enforcers interplay, creating a body of rules strained between uniformity and diversity. The perspective of strategic interaction offers additional and more convincing explanations to the conventional multilevel literature and especially to the concrete operations of enforcement mechanisms.
Keywords: consumer protection, remedies, charter, effective judicial protection, judicial dialogue
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