The Principles of Effectiveness, Proportionality and Dissuasiveness in the Enforcement of EU Consumer Law: The Impact of a Triad on the Choice of Civil Remedies and Administrative Sanctions

In the conventional approach, rights were defined by EU law, while remedies were established by national legal orders. The situation has changed. The principle of procedural autonomy has been severely limited by general principles, such as the ones of effectiveness and equivalence. The power of Member States to define procedures, sanctions and remedies is strongly affected by the principles of effectiveness, proportionality and dissuasiveness. This article will examine the principles of effectiveness, proportionality and dissuasiveness as a triad. The concept of triad is used both as an illustration and as an analytical tool. It is an illustration, since it reflects the frequent and contextual reference by EU secondary law to the three principles as distinct prescriptions to be complied with by the Member States. It is an analytical tool, since it enables the interpreter to look at diversities and complementarities within the triad as part of a coherent and harmonious system of rules. The main purpose is to examine the impact of the triad in the judicial dialogue that emerges among national and EU courts addressing consumer law cases. More particularly, the analysis will focus on the configuration, the choice and the functioning of civil remedies in consumer law, analysing the case law arising in some of the Member States of the EU. In the majority of cases, national legislators fail to provide legislative definitions of effectiveness, proportionality and dissuasiveness and implicitly ‘delegate’ the task of scrutinizing the legislative selection of remedies with the principles to the judiciary. The role of the judge and the strictness of the principles differ depending on whether the enforcement is criminal, administrative or civil. These differences require each enforcer to apply the principles in the context of multiple enforcement mechanisms, taking duly into account the effects that other enforcement mechanisms would produce. In the domain of private enforcement, the analysis below will show that, firstly, the judge plays (and shall play) an important function in setting the procedural conditions for an ‘informed’ remedial choice on the part of the consumer; this function tends to prevail over a more paternalistic role whereby the judge chooses the remedies on behalf of the consumer. Secondly, freedom of contract may still contribute to the definition of effective, proportionate and dissuasive remedies through contractual clauses or separate agreements to the extent that such clauses/agreements protect the consumer and do not reduce his or her power to choose. The illustrations in the text suggest that references to the principles in national judicial applications are not extensive and that their definition is not consolidated. Institutional dialogue will play an important role to ensure that legislative choices are compliant with EU objectives and to fill gaps when legislators or regulators omit to offer proper guidance to national judges.