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Consumption is one of the most influential, albeit dynamic, economic factors of the 21st century and, therefore, the legal rules and norms governing consumers are radically changing overtime. On European level, Directive 1999/44/EC has had a significant impact on the legal systems of member states, since its regulatory framework conflicts with well-established traditions rooted in the legal history of a country. This book will explore how and where the directive's norms clash with national law; Germany and England and Wales will serve as examples of two opposite approaches towards its implementation. Furthermore, the effects of the directive's incorporation into these domestic legal systems will be assessed in the light of the Smart Regulation's normative principles of simplicity and proportionality in order to determine whether it has improved the position of the consumer or legal certainty has been once again undermined.
- AutorZlatka Koleva
- VerlagAnchor Academic Publishing
- Seiten60 Seiten
- Gewicht110 g
- LeseprobeText Sample:
Chapter 1, : Article 3 and 5 of Directive 1999/44/EC:
The starting point of this paper would logically be the Consumer Rights Directive, as it lies in the heart of the discussion. A brief discussion on the legal basis of the Directive will be provided and then reader s attention will be focused on two specific articles, namely article 3 and 5, referring to the newly proposed remedial system and the two-year warranty period. Finally, a short summary of relevant case-law of the European Court of Justice ( the ECJ ) in relation to these provisions, in particular article 3, will be included in order to illustrate the court s interpretation of the Directive with regard to its application and interpretation on national level.
Section 1: Legal basis:
The Consumer Rights Directive itself refers to article 169 [ex article 153 TEC] of the Treaty on the Functioning of the European Union as a legal source, which promotes high level of protection for consumers. This concept has been further embraced by the drafters, as recitals 1 and 23 demonstrate. An important remark would be that this rule is applicable pursuant to article 114 [ex article 95 TEC] of the same Treaty, which envisages the ground-laying idea of the Directive as a whole to serve as a means for minimum harmonization; the intent of the legislator seems to have adopted this line of thought judging by several recitals. Thus, based on the principles embedded in the Treaties, the Consumer Rights Directive should be interpreted as a tool for minimum harmonization in its transposition to national law orders, since it provides member states with the open opportunity to impose stricter rules on specific areas.
Section 2: Article 3 of the Consumer Rights Directive:
One of the main points of discussion in this paper is the newly adopted system of remedies under article 3 of the Directive. The provision itself lays its basis on the principle that the seller is responsible for any lack of conformity on his behalf with regard to the goods delivered. However, the Directive provides an opportunity for specific performance for the seller to repair or replace the faulty good free of charge or either to reduce the price of the good or to have the contract terminated with regard to the good. As it can be observed from this provision, the Consumer Rights Directive imposes a strict hierarchy of remedies available under the EU regime: the first trier of remedies is repair or replacement, unless it is found impossible or disproportionate
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