Intereconomics 2017 | 4
Alexandre de Streel, University of Namur, Belgium;
and CERRE, Brussels, Belgium.
Alexandre de Streel*
A European Agenda for Smart Consumer Protection Rules for
Digital services are increasingly important in the economy
and in society in general, as they continue to shift from
being a speciﬁ c sector of activities to becoming the basis
for the provision of most services. They offer multiple new
opportunities from which consumers beneﬁ t daily, but
they also raise novel questions for consumer protection.
This short policy piece, which is based on a policy report
for the Centre on Regulation in Europe (CERRE), propos-
es a policy agenda to improve EU consumer protection
rules for digital services.
The paper begins with a description of the principles on
which smart consumer protection should be based. The
following section offers proposals to improve the horizon-
tal consumer protection rules which apply to all services,
both digital and non-digital. This is followed by propos-
als to strengthen the enforcement of those rules. The ﬁ -
nal section suggests that if the horizontal rules were im-
proved and better enforced, most of the digital-speciﬁ c
consumer protection rules could be removed.
Principles for smart consumer protection
The best guardians of consumers’ interest are the con-
umers themselves. That is why the main role of con-
sumer policy is to empower consumers to make the right
* This paper is based on a policy report written with Anne-Lise Sibony
of the University of Louvain, Belgium.
1 This paper focuses mainly on four main EU consumer protection laws:
Council Directive 93/13 of 5 April 1993 on unfair terms in consumer
contracts, OJ L 95/29; Directive 2005/29 of the European Parliament
and of the Council of 11 May 2005 concerning unfair business-to-
consumer commercial practices in the internal market, OJ L 149/22;
Directive 2011/83 of the European Parliament and of the Council of
25 October 2011 on consumer rights, OJ L 304/64; and Regulation
2006/2004 of the European Parliament and of the Council of 27 Oc-
tober 2004 on cooperation between national authorities responsible
for the enforcement of consumer protection laws (the Regulation on
consumer protection cooperation). Digital services are understood
broadly and cover the main current legal categories, i.e. the informa-
tion society services, the provision of digital content, the electronic
communications services and the audio-visual media services.
choices for themselves, in particular by ensuring that they
have the right information and the possibility to switch
when needed. However, the most basic dimension of this
empowerment is to ensure that consumers understand
the services they are using and the conditions of their pro-
visions. This may be complex – notably for older citizens
– for digital services which are new and which evolve very
quickly. That is why consumer education with regard to
digital technologies in order to increase digital literacy is
key to a smart consumer protection policy and is a pre-
requisite for the effectiveness of any consumer protection
Good rule-making in general
Good consumer protection rules should abide by the
eneral principles of good rule-making, as put forward in
Baldwin, Cave and Lodge.
Proportionality: Proportionality is a general principle of
EU law requiring that public intervention does not exceed
what is necessary to achieve its objectives.
ality implies that horizontal rules should be as non-dis-
tortive as possible to achieve the protection of consum-
ers, and that the need for speciﬁ c legislation is assessed
against the background of existing horizontal legislation.
Therefore, speciﬁ c consumer protection rules for digital
services should only be adopted when there is a clearly
identiﬁ ed market failure that cannot be remedied by these
horizontal rules. Proportionality should also be respected
by the consumer protection authorities when they im-
plement the rules. Before intervening, authorities should
identify the consumer harm and demonstrate how their
interventions help to remedy such harm.
Self- and co-regulation: A speciﬁ c application of the
principle of proportionality is the reliance on self- or co-
regulation when this mode of regulation can effectively
protect consumers and strike the right balance between
predictability, ﬂ exibility and efﬁ ciency. To do so, the con-
ception and the implementation of self- and co-regulation
should follow the best practices principles adopted by the
2 R. Baldwin, M. Cave, M. Lodge: Understanding Regulation: The-
ory, Strategy and Practice, 2nd ed., Oxford 2012, Oxford University
3 European Commission: Better Regulation Guidelines, Commission
Staff Working Document, SWD(2015) 111 ﬁ nal, Strasbourg 2015.