In November 2008, following a request from the Department of Business, Enterprise and Regulatory Reform (as it then was), the Law Commission and the Scottish Law Commission published a joint Consultation Paper on Consumer Remedies for Faulty Goods. Responses to the Consultation revealed widespread support among consumer and business groups for retaining the consumer's right to reject goods that do not conform to the contract. This right appeared to come under threat in October 2008 when the European Commission published its proposals for a new Consumer Rights Directive. The Law Commissions have now published their Report on Consumer Remedies for Faulty Goods, which sets out a number of recommendations to improve and clarify the current law on consumer remedies. Not surprisingly, these include retaining the right to reject, in the context of the current debate about the proposed Directive.
Domestic consumer protection laws are under the microscope, particularly as the proposed Consumer Rights Directive threatens to throw them into disarray, a process that is arguably well under way thanks to the Consumer Sales Directive. Consumer remedies for faulty goods are an area of particular concern, owing largely to the lack of synergy between the consumer sales regime derived from EU law and traditional remedies such as the right to reject.
The UK Government has already made clear on a number of occasions that it wishes to retain the right to reject. Even within the European Union itself, concerns have been raised about the potential erosion, as a result of the maximum harmonisation approach under the proposed Consumer Rights Directive, of consumer rights in Member States like the United Kingdom that have taken advantage of the minimum requirement approach under the current EU consumer protection law to maintain higher levels of protection.
Something therefore has to give at EU level. If the proposed Directive does go through as a maximum harmonisation measure then the hope is that the EU legislature will be persuaded to incorporate the right to reject, something that is by no means guaranteed in that such a right is not universally a European concept. Alternatives, the Law Commissions' Report suggests, would include a scheme of "differentiated harmonisation" involving targeting areas of consensus but leaving the right to reject, for example, outside the scope of maximum harmonisation.
It is ironic that, at a time when the law on consumer remedies for faulty goods is considered in need of review for lack of certainty and consumer understanding, the aspect of the current regime that provides most certainty, namely the right to reject, is under threat. There have been attempts at providing assurance to Member States that traditional remedies like the right to reject will not be affected by the new Consumer Rights Directive. Such assurances suggest that a programme of "differentiated harmonisation" is a possibility. These, however, are hard to reconcile with the overriding objective of the European Commission's proposals, which is to eliminate inconsistencies between Member States so as to provide greater legal certainty throughout the European Union in order to improve confidence in cross-border trading.