Full Description
It has long been thought that fairness in European Consumer Law would be achieved by relying on information as a remedy and expecting the average consumer to keep businesses in check by voting with their feet. This monograph argues that the way consumer law operates today promises a lot but does not deliver enough. It struggles to avoid harm being caused to consumers and it struggles to repair the harm after the event. To achieve fairness, solutions need to be found elsewhere. Consumer Theories of Harm offers an alternative model to assess where and how consumer detriment may occur and solutions to prevent it. It shows that a more confident use of economic theory will allow practitioners to demonstrate how a poor standard of professional diligence lies at the heart of consumer harm. The book provides both theoretical and practical examples of how to combine existing law with economic theory to improve case outcomes. The book shows how public enforcers can move beyond the dominant transparency paradigm to an approach where firms have a positive duty to treat consumers fairly and shape their commercial offers in a way that prevents consumers from making mistakes. Over time, this 'fairness-by-design' approach will emerge as the only acceptable way to compete.
Contents
1. Introduction
I. The Search for Fairness
II. Origins of Theories of Harm in Competition Law
III. Using Theories of Harm in Consumer Law - A Natural Evolution
IV. Harnessing the Use of Economics in Consumer Law
V. Contents
2. The Limitations of Consumer Law in Tackling Consumer Harm
I. Introduction
II. Limitations in the Use of Information as a Mainstream Transparency Approach
III. Limitations of the Definition of the 'Average Consumer' Used as a Reference Point for Protection
IV. Implementation of the 'Average Consumer' Standard under the Unfair Commercial Practices Legislation
V. Protecting 'Vulnerable' and 'Disengaged' Consumers
VI. Limitations Found in Unfair Terms Legislation
VII. The Enforcement Framework in the UK
3. The Limitations of Competition Law in Tackling Consumer Harm
I. Introduction
II. Ex-Post Enforcement against Exploitative Abuses
III. The Case for a Holistic Approach under an Ex Ante Administrative Market Regime
IV. The Enforcement Framework in the UK
4. The Economic Framework Underpinning Consumer Theories of Harm
I. Introduction
II. Consumer Surplus
III. The Economic Case for Intervention in Consumer Markets
IV. Concluding Remarks
5. Archetypal Consumer Theories of Harm
I. Introduction
II. The Scam
III. The Lemon
IV. The Shock
V. The Subsidy
VI. Concluding Remarks
6. Applying CToHs - Case Studies
I. Case Study on the CMA Market Inquiry into Retail Energy
II. Case Study on Bank Current Accounts and Savings Accounts
III. Case Study on Claims for Compensation in the Airline Industry
IV. Case Study on Allocated Airline Seating
V. Case Study on Fertility Add-Ons
7. Fairness by Design: The Introduction of a Positive Duty to Trade Fairly
I. Introduction
II. Justifications for Adopting a More Prescriptive Standard of Conduct for the Protection of Consumers
III. Introducing a Positive Duty to Trade Fairly
IV. The Impact of a General and Positive Duty to Trade Fairly
V. Conclusion
