LANDMARK CASES OF EU CONSUMER LAW IN HONOUR OF JULES STUYCK LANDMARK CASES OF EU CONSUMER LAW In Honour of Jules Stuyck Evelyne Terryn Gert Straetmans Veerle Colaert (eds.) Cambridge – Antwerp – Portland Intersentia Publishing Ltd. Trinity House | Cambridge Business Park | Cowley Road Cambridge | CB4 0WZ | United Kingdom Tel.: +44 1223 393 753 | Email: [email protected] Distribution for the UK: Distribution for the USA and Canada: NBN International International Specialized Book Services Airport Business Centre, 10 Th ornbury Road 920 NE 58th Ave. Suite 300 Plymouth, PL6 7 PP Portland, OR 97213 United Kingdom USA Tel.: +44 1752 202 301 | Fax: +44 1752 202 331 Tel.: +1 800 944 6190 (toll free) Email: [email protected] Email: [email protected] Distribution for Austria: Distribution for other countries: Neuer Wissenschaft licher Verlag Intersentia Publishing nv Argentinierstraße 42/6 Groenstraat 31 1040 Wien 2640 Mortsel Austria Belgium Tel.: +43 1 535 61 03 24 Tel.: +32 3 680 15 50 Email: offi [email protected] Email: [email protected] Landmark Cases of EU Consumer Law – In Honour of Jules Stuyck Evelyne Terryn, Gert Straetmans, Veerle Colaert (eds.) © 2013 Intersentia Cambridge – Antwerp – Portland www.intersentia.com | www.intersentia.co.uk ISBN 978-1-78068-185-6 D/2013/7849/105 NUR 827 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfi lm or any other means, without written permission from the publisher. CONTENTS Foreword . ix A Personal Note . xi Laudatio . xiii Bibliography Jules Stuyck . xvii Chapter 1 Th e Consumer: Notion and Image Th eme I. Consumer Image: Linguistic, Cultural and Social Diff erences Stephen Weatherill . 1 Th eme II. Th e Average Consumer’s Degree of Attention in Trade Mark Cases Andrée Puttemans . 21 Th eme III. Consumer/Citizen Access to Information – A New Fundamental Right under the EU Charter Norbert Reich . 35 Th eme IV. Consumer Notion: Natural or Legal Persons and Mixed Contracts Johan Vannerom . 53 Th eme V. Consumer Notion: Suretyship Fryderyk Zoll . 73 Th eme VI. Protection of the ‘Vulnerable’ Consumer of Financial Services Tom Van Dyck . 83 Chapter 2 Consumer Protection, Free Movement and Harmonisation Th eme I. Market Access and Proportionality Koen Lenaerts . 95 Th eme II. Free Movement of Goods, Market Access and Consumer Protection Wulf-Henning Roth . 119 Th eme III. Prohibitions on Doorstep Selling, Itinerant Selling and Canvassing and the Free Movement of Goods and Services Reinhard Steennot . 145 Intersentia v Contents Th eme IV. Minimum Harmonisation and Consumer Law – Choice of Legal Basis Piet Van Nuffel . 173 Th eme V. Language Requirements and Labelling Anne Looijestijn-Clearie . 199 Th eme VI. Damaging Coherence, Disenfranchising Consumers? Some Refl ections on Faccini Dori at Twenty Henri De Waele . 225 Th eme VII. Protection of Consumers against Discrimination: the Test-Achats Ruling Caroline Van Schoubroeck . 239 Th eme VIII. Discrimination and Restriction in Direct Taxes: Building Blocks of the Internal Market Frans Vanistendael . 259 Th eme IX. Restrictions on Exports and Consumer Protection Laurence W. Gormley . 277 Chapter 3 Consumer Protection through Product Liability Th eme I. Level and Scope of Harmonisation of the Directive – Survival of National Product Liability Regimes? Herman Cousy . 291 Th eme II. Defences Geraint Howells . 307 Th eme III. Heads of Damage Jean-Sébastien Borghetti . 315 Chapter 4 Consumer Protection and Unfair Commercial Practices Th eme I. Consumer Protection and Fair Trading Merge as Public Interest Grounds Johan van de Gronden . 329 Th eme II. Th e Notion of Comparative Advertising Frauke Henning-Bodewig . 345 Th eme III. Comparative Advertising: Price Comparisons Gabriël Luc Ballon . 359 Th eme IV. Comparative Advertising and Use of Trade Marks: Confusion, Imitation and Unfair Advantage Gert Straetmans . 373 vi Intersentia Contents Th eme V. Keyword Advertising, Consumer Protection, Fair Trade and Intellectual Property Th omas Incalza . 403 Th eme VI. Combined Off ers Veerle Colaert and Maarten Peeters . 427 Th eme VII. Sales Periods Jacques Laffineur and Michel Van Huffel . 447 Th eme VIII. B2C and B2B – Consumer/Competitor Protection Bert Keirsbilck . 461 Th eme IX. Interpretation of Blacklisted Practices Anne-Christine Fornage . 477 Th eme X. Misleading Omissions/Invitation to Purchase Anne-Lise Sibony . 487 Chapter 5 Consumer Contract Law and Enforcement Th eme I. Information Requirements and the Internet Christian Twigg-Flesner . 509 Th eme II. Th e Eff ects of the Consumer’s Withdrawal from the Contract Peter Rott . 523 Th eme III. Right of Withdrawal – Interoperability of Directives Marco B.M. Loos . 545 Th eme IV. Th e Notion of Damage in EU Consumer Contract Law Simon Whittaker . 559 Th eme V. Unfair Contract Terms – Scope of Control of Unfair Terms (Core Terms Included or Excluded?) Sergio Cámara Lapuente . 581 Th eme VI. Consumer Protection and Procedural Justice Christopher Hodges . 615 Th eme VII. Unfair Contract Terms – Revising the Content of a Term Ewoud Hondius . 625 Th eme VIII. Unfair Contract Terms – Public Interest Litigation before European Courts Hans Micklitz . 633 Th eme IX. Unfair Contract Terms – Eff ect of Collective Proceedings Fabrizio Cafaggi and Stephanie Law . 653 Th eme X. Unfair Contract Terms – Statutory Provisions, Price Increase Terms and the Role of the CJEU Evelyne Terryn . 677 Th eme XI. Consumer Sales – Remedies Sophie Stijns and Sanne Jansen . 701 Intersentia vii Contents Th eme XII. Consumer Sales – Th e Weber-Putz Case-Law: From Traditional to Modern Contract Law Stefan Grundmann . 725 Th eme XIII. Out-of-Court Dispute Settlement Hans De Coninck . 743 Table of Cases . 765 viii Intersentia FOREWORD In recent years, there has been a notable tendency towards increasing the visibility and usability of libri amicorum. It therefore appeared only fi tting that Prof. dr. Jules Stuyck’s Festschrift serve an audience as wide as his fi eld of expertise is encompassing. Indeed, Jules’ expertise is European as much as it is Belgian. It relates to consumer law as well as competition law. And it is both academic and practical in nature. Th erefore at the occasion of his emeritus ceremony on 20 September 2013, not one liber, but two libri have been presented to Jules Stuyck. One dedicated to consumer law and another focusing on competition law. One taking a European point of view, the second rooted in Belgian law.1 Th e format of both libri is however similar. In honour of Jules’ renowned skills to switch from law in the books to law in action, we have asked his amici to build their academic contributions on landmark cases of European consumer law and Belgian competition law. Some of these cases have been pleaded by Jules – no surprises there. Many of them have been elucidated by his sharp-witted comments. Th e libri thus tell the story of the coming of age of two legal domains that were scarcely developed when Jules started his career as an academic and a lawyer, yet that haven’t ceased to expand in depth and scope since. However, neither of the two libri amicorum has been conceived by the editors as an exercise in nostalgia. Th e contributions off er ample food for thought about the challenges awaiting consumer and competition law in the years to come. Th e selected cases in this book on consumer law are without exception landmark decisions. Th e selection has further been determined by the particular interests of Jules’ friends. What the book doesn’t off er however, is an exhaustive overview of EU consumer law jurisprudence. It doesn’t aspire to be a textbook covering all aspects of consumer law. Rather, the authors have approached the cases – which generally have been commented upon quite extensively in legal doctrine already – from a novel and personal perspective, sometimes coloured by the contributor’s particular background and relation to Jules. Very oft en, the cases have been used 1 For the liber focussing on competition law, see W. Devroe, K. Geens, P. Wytinck (eds.), Mijlpalen uit het Belgisch mededingingsrecht geannoteerd. Liber amicorum Jules Stuyck, Antwerpen, Kluwer, 2013, 618 p. Intersentia ix Foreword as a point of departure to point out a development in EU and / or national consumer law. We think that the result of the contributors’ eff orts reads as an expression of esteem, friendship and gratitude to prof. dr. Jules Stuyck. At the same time, we trust this book will be read and continue to be read by anyone interested in EU consumer law. And in the end, we hope that this liber amicorum may serve as a reminder of Jules’ contribution to the work in progress that is modern day consumer law. Th e editors 29 July 2013 x Intersentia A PERSONAL NOTE I met Jules Stuyck for the fi rst time nearly thirty years ago at a conference in Brussels. Where else could it have been in 1983 or 1984? Th e European Union, at that time the European Economic Community, was in bad shape. Th e Single European Act had not yet been adopted, nor even the now famous White Paper on the Completion of the Internal Market. Th e European Commission had put consumer law on its agenda, via the fi rst programme in 1976 and the second in 1981, but was lacking the drive, power, support and legitimacy to.