Rethinking the Consumer Conflict Rule

Consumer protection is taken for granted in today’s society. A multitude of consumer law harmonisation measures exist on the EU level. Also conflict-of-laws knows a specific rule for consumer contracts: Article 6 Rome I Regulation. It regulates that the law of the consumer’s home country applies to the contract unless a choice of law was made. If so, that choice may not lead to the consumer being ‘deprived of protection’ that they enjoy in their home country.

It is unclear how to assess whether the consumer is deprived of their protection. This project found that both involved laws need to be compared. If one law is more favourable to the consumer, then that law applies (‘preferential law approach’). The judge needs to exercise this comparison on their own motion.

However, comparing the consumer laws of two countries leads to practical issues. The language and the difficult accessibility of sources on foreign law, amongst other things, render the comparison complicated. A comparative analysis of Dutch and German consumer law shows that the level of consumer protection in EU countries differs despite harmonisation efforts. Comparing both laws can therefore lead to the conclusion that the chosen law protects the consumer better. Yet, the complicated application of the rule leads the author to conclude that Article 6 needs to be revised.

The project concludes that the best option is to abolish the right to choose a law. The law of the consumer’s home country then applies, resulting in lower costs and higher legal certainty for both parties.