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Introduction

In 2004, a group of scholars signed a collective work with the evocative title “Social Justice in European Contract Law: A Manifesto”. Starting from the idea that private contract law had the potential to shape the future of the European Union, the document aimed to achieve two main objectives: 1. The construction of a European contract law, since this task could not be conceived merely as a technical issue; instead, according to the authors, a political framework should be established to discuss and identify a set of shared fundamental values concerning social and economic relations between citizens; 2. The definition of new methods for constructing these shared fundamental values.

To better understand these aims, we should remember that during the period in which the Manifesto was developed, the idea of introducing a European civil code and a common, shared regulation of contracts was widespread, fueling several academic discussions. Accordingly, the Manifesto sought to introduce a debate on principles and values and to emphasize the importance of social justice in contract law. It attempted to move the discussions among private law scholars beyond technicalities, to recapture the political dimension of private and contract law. Despite the failure of the legal projects aimed at introducing a European contract law, the general objective pursued by the Manifesto remains very important. In fact, debating which principles and values should inspire contract law is key to shaping market relations and their impacts. According to the Manifesto, contracts are both instruments of trade and instruments of politics.

Twenty years later, this insight continues to be crucial, especially when considering three factors:

First, the privatization of public services and social welfare in many EU Member States implies that contract law and its logic are expanding their domain. This political decision has not been imposed by the EU Commission, as – according to Article 345 of Treaty on the Functioning of the European Union  – the choice of public or private regimes for national services is exclusively the responsibility of national States. Nevertheless, the obligation to respect economic commitments, as well as the mechanism of conditionality imposed by the Commission, has pushed national governments towards these kinds of policies. Second, the EU has promoted the paradigm of competition as a tool to make the single market more efficient. The impact of this policy has led to the expansion of public tenders and, consequently, the application of specific selection principles such as the “best price”, which can sometimes compromise the quality of services or make universal services unprofitable. Third, the construction of the digital single market, which in 2004 was just beginning, along with the rise of surveillance capitalism, has introduced new processes of commodification that have impacted human beings and their immaterial attributes, such as personal data.

From Contract Law to Consumer Law

These three factors highlight a significant trend in the EU’s social economy: EU citizenship has long been shaped by a consumer-based approach.

The paradigm of the citizen-consumer has been supported by the goal of building single markets, and by the delayed adoption of a shared catalogue of fundamental rights. However, as many authors have shown, the contribution of the European Court of Justice has been essential in strengthening this dimension. Thanks to the Court’s jurisprudence, fundamental rights have been balanced, and limits have been imposed on private activities.

The paradigm of the citizen-consumer finds its counterpart in the significant regulatory efforts made by the EU to harmonize national consumer law. Harmonization has been pursued to facilitate the construction of single markets as a regulatory tool to eliminate barriers and permit cross-border transactions. After an initial wave of Directives in the late 1980s and early 1990s, a significant legislative effort has been made in recent years to consolidate digital markets. In this legal scenario, the citizen-consumer is conceived as a rational actor, capable of making independent market choices. To facilitate this process, consumer law plays a crucial role in addressing informational asymmetries that can compromise consumer freedom by providing all the necessary elements to make the best selection of products and services. Accordingly, businesses are required to fulfill several information duties. Moreover, consumers benefit from effective competition among market operators, which the EU has sought to enhance through regulatory efforts, as evidenced by the recent Digital Markets Act.

Thus, we can assume that the citizen-consumer is primarily a market participant, while other dimensions, such as being a subject of fundamental rights[1] and a political actor capable of influencing the EU’s political direction, remain in the background. This latter missing profile is further emphasized by the fact that the political groups within the EU Parliament do not correspond to European parties, limiting direct citizen participation.

The theoretical significance of consumer law – marked by the consolidation of the citizen-consumer – and its broad application contribute to shaping a distinct identity for EU citizens, one that is fundamentally market-oriented. As we will discuss later, the authors of the Manifesto recognized the central role of consumer law in the construction of the EU single market. However, they may have underestimated its capacity to shape a shared European identity.

Today, the battleground for defining fundamental shared values and social justice lies more within consumer law than general contract law, and a radical perspective is needed to develop an alternative understanding of this body of rules. Therefore, two question arise: Can consumer law be reshaped to translate social justice? Similarly, given the importance of the ecological challenge, can consumer law pursue ecological justice?

State of art

To understand whether EU consumer law formulates principles capable of ensuring social and ecological justice in market transactions, we must first define these concepts.

Starting with the idea of social justice, we note that the Manifesto does not provide a definition, and this gap has led to several critiques. In this paper, I assume that the concept of social justice is closely connected with the idea of creating and sustaining a fair and equal society where each person and all groups are valued and affirmed. Accordingly, achieving social justice involves efforts to eliminate inequalities in all areas where they may arise. Thus, economic disparities should be addressed, and different treatments based on race, gender, or religion must be challenged.

Regarding the concept of ecological justice, it refers to “the state of balance between human communities and healthy ecosystems, based on thriving, mutually beneficial relationships and participatory self-governance” (Climate Justice Alliance).

In the Manifesto, we find useful suggestions for understanding whether consumer law ensures social justice. According to the authors, directives have been mainly structured to share a “set of minimum standards with respect to the quality and safety of goods.” We could argue that this type of provision ensures that all consumers — regardless of their economic situation or purchasing power — can buy products that comply with legal requirements.

Moreover, the Manifesto considers the principle of fairness in transactions, which seeks “to balance respect for private autonomy against the concern to protect weaker parties and to ensure social justice.” The regulation of unfair contract terms, which best exemplifies this approach, has significantly expanded in recent years. For example, in digital market transactions, a new set of unfair clauses has been introduced in business-to-business relations, aimed at protecting small businesses from the dominance of large tech companies.

But are these efforts sufficient to ensure social justice? The answer is likely negative. As the Manifesto already clarifies, consumer protection measures have been designed primarily to correct market imbalances, rather than to help weaker parties. Their aim is “to prevent distortions in competition.” This regulation only addresses the information gap between parties in a transaction, overlooking other differences that could be sources of inequality. Therefore, the heterogeneity of consumers is not adequately considered[2].

Additionally, as Hesselink points out, EU regulations on e-commerce have led to the commodification of the consumer by allowing personal data to be used as consideration in digital transactions[3]. Although this provision was introduced to provide consumers with remedies equivalent to those available for contracts involving monetary payment, it nonetheless authorizes a market for personal data. This is affirmed by both the legal framework of the GDPR and the Data Governance Act. However, this rationale is not entirely convincing, as national litigation for breaches of terms of use and other digital contracts remains limited, partly due to difficulties in accessing justice and the low economic value of these lawsuits. Moreover, certain commercial activities, such as the organization of professional services for storing personal data, confirm the EU’s political will to facilitate the creation of a personal data market.

The support provided to weaker parties by the European Court of Justice — for instance, through the Aziz decision in banking relations and the Schrems Saga concerning personal data protection — is insufficient to compensate for the lack of a social justice perspective in consumer law.

When it comes to achieving ecological justice, the progress is only partially positive. Directive EU 2019/771 addresses the issue of planned obsolescence (through the concept of durability – see Recital 48), but no specific sanctions have been introduced to combat it. More promising are both the regulation of the right to repair and the decision to introduce USB-C universal charging for all mobile phones, tablets, and cameras sold in the EU (effective from December 28). However, despite these measures, ecological obligations on businesses remain insufficient and risk fostering greenwashing behaviors. Furthermore, the ecological impact of digital transactions, as well as related phenomena like Bitcoin mining, has not been part of the political debate. Although the EU frequently discusses together the green and digital transition, the two areas are not actually interconnected. This creates a risk of shifting the responsibility and costs of the green transition entirely onto ethical consumers.

Remarks for the future

The Manifesto likely aimed to achieve two different objectives. On one hand, it sought to open an academic debate; on the other, it tried to send a message to the EU lawmakers in order to influence future regulatory decisions concerning European contract law. Twenty years later, these same objectives can, mutatis mutandis, still be relevant.

Firstly, with regard to the academic debate, I believe we need to promote the development of a shared understanding of European private law and cultivate a critical perspective on consumer law, one that embraces a law and society approach. These objectives would greatly benefit from an increase in the availability of European private law courses at universities across Europe. In particular, considering the situation in Italy, such courses are not widely offered, and they are generally not mandatory. However, educating a new generation of European legal scholars is essential for expanding the debate around legal paradigms and taxonomies, with the aim of overcoming the formalistic approach that otherwise risks dominating the field of consumer law.

Secondly, regarding messages for lawmakers, I believe that social and ecological justice can be integrated into consumer law by promoting two distinct dimensions. As mentioned earlier, the neglect of consumer heterogeneity is one of the main issues in consumer regulation. While the notion of a vulnerable consumer could be improved, attempting to represent heterogeneity through regulation would be highly complex and could prove ineffective. An alternative approach could be to address heterogeneity through an ex post strategy, reconstructing a group of consumers after the transaction has taken place. This solution would require new remedies for class action, which could facilitate mutual recognition and foster the growth of a common political consciousness. Additionally, consumer associations must play a pivotal role, but they need to enhance their efforts and transform from mere lobby groups into entities capable of engaging a European audience.

Raising political awareness also means highlighting aspects of market transactions that are currently of interest only to so-called ethical consumers. These include ethical production, attention to the production process and the origin of raw materials, as well as the conditions of workers. Consumers need to fully understand what they are buying and the broader consequences of their market choices. Furthermore, this approach must extend to digital markets and technological products, which are often opaque to consumers. Ethical alternatives in these markets must be developed and made accessible.

However, to prevent ethical consumption from being mere window dressing, a specific set of remedies should be introduced to allow action against products that do not comply with fundamental rights. A potential entry point for introducing such rules could be found through interpretive efforts with the relevance of legal defects introduced by the Directive EU 2019/771 in Recital 35 and then in art. 9[4]. This provision was introduced to ensure that technological products — especially software and goods within the Internet of Things ecosystem — comply with the protection of personal data. However, art. 9 is worded broadly enough to allow for an extensive interpretation, since it takes into consideration the “restriction resulting from a violation of any right of a third party […]” that  “prevents or limits the use of the good” in such a way that undermines subjective or objective requirements for conformity.

In conclusion, a transformative approach to consumer law, one that addresses both social and ecological justice, requires two key efforts: the construction of a European community of consumers and the development of counter-hegemonic legal interpretations. The work done over the last decade in the field of property law offers a good example on which to base an original strategy. Despite the traditionally rigid nature of this area, the emergence of a debate around the concept of the commons has allowed for a rethinking of the traditional paradigm of property, which is based on the centrality of the right to exclude. It has also fostered alliances with social movements advocating for urban transformations that require a new property paradigm. Social justice has entered property law to defend non-owners and to introduce legal interpretations that emphasize distributive justice. This is the path we must design for consumer law — one that operates both within and against neoliberal logic.

[1] Mak, V. (2016). The consumer in European regulatory private law. A functional perspective on responsibility, protection and empowerment. In D. Leczykiewicz, & S. Weatherill (Eds.), The Image(s) of the Consumer in EU Law: Legislation, Free Movement and Competition Law (pp. 381-400). Hart Publishing.

[2] Omri Ben-Shahar & Oren Bar-Gill, “Regulatory Techniques in Consumer Protection: A Critique of European Consumer Contract Law,” 50 Common Market Law Review 109 (2013).

[3] Martijn W. Hesselink, Alienation commodification: a critique of the role of EU consumer law”, European Law Open (2023), 2, 405–423

[4] A. Quarta, Per una teoria dei rimedi nel consumo etico. La non conformità sociale dei beni tra vendita e produzione, in Contratto e impresa, 2/2021, 523-542.

Art by Tomoko Nagao
Il quarto stato with motta, campari, pirelli, armani, prada, chicco, alitalia and visa at piazza duomo
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