This thesis of Fiona Jennifer Unz assesses the adaptability of EU consumer law to technological disruptions and proposes a set of criteria to enhance it, thereby future-proofing consumer protection within the EU. Disruptive innovations can have a substantial effect on the level of consumer protection in the EU. Although legislators aim to ensure consumers are sufficiently protected in the digital market and to future-proof the consumer acquis, the pace at which technology and the law develop differ, with technology following a rapid pace and the law struggling to keep up. At the same time, most existing consumer law instruments are inflexible and rigid and, therefore, unable to accommodate technological developments that were unforeseen at the time of their adoption. As a result, legal disruptions that manifest as gaps and uncertainties are unveiled. Notable examples are the disruptions of e-commerce, online platforms and smart mobility, which transformed consumer markets but also exposed the limitations of the current legal framework. To accommodate future disruptions, consumer laws should be adaptable to societal and technological changes.

This thesis fills the gap in literature regarding the elements of adaptability that EU (consumer) law should exhibit to better withstand future disruptions. To reach its conclusions, the thesis first develops an ex-post adaptability test, which assesses the impact of a disruption on existing legislation. Then, a doctrinal analysis delves into literature regarding the elements of legal adaptability and distills these findings to form the ex-ante adaptability criteria. To verify the validity of these criteria the final methodological part is the feedback loop. This feedback loop includes an ex-ante predictive step, which focuses on assessing a legal instrument through the lens of the adaptability criteria, to determine the likelihood of its applicability to unforeseeable disruptions. Subsequently, these predictions are verified by performing the ex-post  adaptability test mentioned above and evaluating whether that instrument has indeed be found applicable to an unforeseen disruption.

Through this process, this research identified the elements that will allow EU consumer laws to better adapt to future disruptions. First, an appropriate balance between legal certainty and flexibility should be achieved. Achieving this requires viewing legal certainty as a relative principle and abandoning the traditional positivist view, which demands absolute predictability and an untenable standard of optimum legal certainty. The thesis proposes that the principle should reflect three levels of (un)certainty, which should be assessed in each individual case: application (un)certainty, behavioural (un)certainty and contextual (un)certainty. The appropriate degree of legal certainty should be determined through a transparent process, whereby the tolerable degree of uncertainty is determined against the background of the benefits of flexibility for the involved stakeholders. Furthermore, flexibility should be ensured through legislative and semantic flexibility, which is mirrored in two-tiered rules. In this way, a principle-based provision is further specified with a second layer of guidance, which can take the form of soft law or Annexes. Besides this balance of legal certainty and flexibility, EU consumer law needs to reflect tenable technological neutrality, thereby avoiding the development of instruments or provisions targeting specific technologies, which will ensure that the rules protecting consumers will not become obsolete as technology evolves. Finally, the objectives of consumer law, namely ­providing a high level of protection for consumers without overburdening traders, as well as the safeguarding of the internal market, should be sought by ensuring an appropriate balance of the parties’ interests and compliance with established EU principles. In addition to the adaptability criteria, this thesis identified regulatory tools that can enhance the ability of EU consumer law to respond to disruptions, such as experimental rules and regulatory sandboxes. EU policy makers are encouraged to incorporate the adaptability criteria into legislative design and review processes and foster further adaptability through appropriate regulatory tools. The thesis concludes with concrete (general and specific) policy recommendations, as well as suggestions for businesses and consumers, which help safeguard consumers’ interests and ensure smoother compliance with a changing regulatory landscape.

Unz defended her PhD on December 10th at the Erasmus University Rotterdam. Supervisors: prof. dr. W.outer Verheyen (University of Antwerp) and prof. mr. dr. Harriët Schelhaas (Erasmus University).

 
Fiona Jennifer Unz
Future-proofing EU Consumer Law. A Legal Framework for Assessing and Enhancing Adaptability to Disruption

This dissertation is available in the repository of the EUR.