The Reform Treaty and the Protection of European Consumers

(Iris Benoehr, European University Institute)

An adoption of the Reform Treaty will make the Charter of Fundamental Rights (Charter) legally binding to all EU institutions and most Member States applying community law. In its solidarity chapter, the Charter guarantees a high level of protection for the consumer. Up to date, however, no clear consensus has been made on the importance of a formal declaration of such human rights. To many, the acknowledgement of these rights is more rhetorical than real, amounting to a soft law acceptance of international and national legal instruments already in place.

In light of these criticisms, can the legal binding reference to the Charter by the Reform Treaty improve European consumer rights in the future? On the one hand, the jurisprudence of some member states shows that the application of fundamental rights can produce positive effects on consumer protection. On the other, the Charter is narrow in scope and is highly dependent on political will.

This paper stresses the importance of the Reform Treaty enabling consumers to enforce the rights declared by the Charter, suggesting a capability approach to fundamental rights. In other words, it argues in favor of consumer empowerment in the regulation and enforcement processes. The capability approach will be demonstrated using concrete cases, with applications to consumer credit, collective actions and health law.