Consumer protection , Austrian and Swiss consumer protection , describes the entirety of efforts and measures that are intended to protect people in their role as consumers or consumers of goods or services . It also includes functions delegated by the state to consumer protection associations. This need for protection is based on the fact that consumers are structurally inferior to manufacturers and distributors of goods and service providers , i.e. they can be disadvantaged as a result of less specialist knowledge, information, resources and / or experience. The concern and task of consumer protection is to compensate for this imbalance in a meaningful way and to help consumer interests to be adequately enforced on the supplier side.
In a broader sense, the term is also used to denote the protection against health hazards guaranteed by legal regulations (see safety information ) that consumers typically threaten (e.g. through contamination in drinking water ). In this respect, the use of language is inconsistent; some speak of consumer protection, some of health protection or “consumer health protection”.
Comprehensive consumer protection systems were already in place in German-speaking countries in the High Middle Ages , when cities and sovereigns enforced detailed ordinances and decrees. Initially, they mainly concerned the basic supply of the population with food, its minimum quality criteria and reasonable prices. The quality of goods, sales prices, dispensed quantities, sales dimensions and weights were also regulated and violations were punished. The purity law is an example , but there were also detailed ordinances for numerous other areas of business and life, such as the grain trade, bakeries, butchers or water supply.
The traditional economic model does not differentiate between the consumer and the entrepreneur. Both are therefore fully “mature” and capable, willing and able to make decisions themselves ( Homo oeconomicus ).
In contrast, the current consumer model paints a different picture. If studies of actual consumer behavior are used as a basis, it becomes clear that the consumer is not only dependent on information from the entrepreneur, but can only process a certain amount of information (information overload) and is also not always able to act rationally. The supplier side uses these findings by not providing comprehensive and objective information about their products in their advertising. The entrepreneurs also try to subliminally convey non-justified purchase incentives using psychological knowledge and to urge the consumer to conclude business quickly and uncontrollably.
From the point of view of consumer protection, the guiding principle of the consumer in need of protection is justified because he is structurally inferior to the providers of products and services. In principle, the consumer does not have the same specialist knowledge and the relevant verification resources for individual purchases as the possibly internationally active entrepreneur whose daily business is the respective field. There is therefore a certain “imbalance situation” and a power and information gap between entrepreneur and consumer, which consumer law is intended to level out. This model among consumers (lack of legal knowledge, economic inferiority, psychological obstacles, unmistakable range of goods) has also largely prevailed in the work of the legislator (see below). From an international perspective, there are different approaches to consumer protection. Because while a precautionary principle predominates in Europe , the scientific principle applies to US agencies .
Making conscious consumer choices continues to largely depend on consumer information being available and transparent (“informed consumer”). In some areas, attempts are made to ensure this through laws (for example with the content information for packaged food, prescribing understandable product information, etc.) or that in certain transactions hasty, evidence and information protection through formal requirements (starting with the written form up to notarial Documentation) or there is an obligation to document explanations (rights of withdrawal, borrower rights, etc.). Consumer protection is particularly important in online trading or in the area of online legal transactions or distance selling. It should also be clearly clear to the consumer whether or when and with whom he is concluding the contract, how this company basically acts and whether the company is clearly fulfilling its obligations (e.g. with regard to taxes, environmental regulations, etc.). Of course, consumer protection is intended to protect consumers from any unlawful involvement in company activities with regard to money laundering , tax evasion or corruption .
From an international perspective, consumer protection tries to counteract the fact that large companies, banks and business associations do not comply with the formal requirements that affect them (e.g. guidelines on online trading, written form for consumer transactions, records for consumer protection, the availability of meaningful registers or documentation in the event of changes in the corporate structure or the corporate capital). Conversely, consumer protection and the traceability of financial service providers or large companies are given a higher priority by financial supervision. According to the Austrian financial market supervisory authority for the digital revolution in the financial sector, the principle “The high level of consumer protection is allowed to go through” continues to apply to the facilitation of mobile payments and money transfers with smartphones, financing with crypto currencies and crowd investing, despite all the easing and acceleration tendencies digitization cannot be watered down. ”In many areas, for example in financial transactions, textiles, food or technology, many consumers still lack extensive, understandable, meaningful information about the product or its creation.
More recent results of brain research raise clear doubts about the model of a rationally acting consumer. In the vast majority of cases (including economic) decisions are made unconsciously. In the context of strategies of neuromarketing one wants to make use of the scientific knowledge and generate certain reactions in the brain through targeted sensory stimuli. Critics see clear signs of manipulation here .
Carriers and subjects
State institutions, private associations and consumer media are responsible for consumer protection.
Consumer protection issues include:
- Investor protection
- Consumer education
- Consumer privacy
- Consumer contract
- Comparative product test
- Tenant protection
In German law there is no separate “consumer protection law” that would regulate all questions of consumer law. Legal norms, which mainly or “incidentally” serve consumer protection goals, exist in a large number of individual laws. The objectives of consumer protection often overlap with other objectives. This is because the consumer is only seen as a “consumer” in certain social contexts. The same people can be exposed to the same risk in a different context, e.g. B. as an employee . A regulation that regulates the handling of a chemical can therefore serve both industrial safety and consumer protection and possibly also environmental protection . As a legal area, consumer protection cannot be clearly defined. The following list of consumer protection regulations under German law is therefore not exhaustive and, in particular in public law, also contains standards that also pursue other objectives.
In the German Civil Code (BGB), this includes the regulations on unsolicited services (§ ), the regulations on the principles of consumer contracts and special forms of distribution (§ , to 312k), the regulations on the right of withdrawal for consumer contracts ( , to 361 ), the regulations on the purchase of consumer goods (§ to 479), on part-time rights of residence contracts, contracts for long-term vacation products, brokerage contracts and exchange system contracts (§ to 487), on consumer loan contracts (§ to 505), as well as the regulations on financial assistance between an entrepreneur and a consumer (§ to 509) and through installment contracts ( ) as well as provisions on the indispensability and application to start-up consumers (§ to 512), the regulations for the mediation of consumer (§ to 655e) , on profit commitments (§ ), on the value date and availability of monetary amounts (§ ). The provisions on tenant protection in residential rental law ( to 577a) also count towards consumer law in the broader sense. Many other provisions of civil law cannot be clearly assigned to consumer protection because they aim to balance typical conflicting interests between contracting parties and are therefore not exclusively protective norms in favor of the consumer, but generally want to protect the contracting partner. These regulations include: B. those about general terms and conditions (§ to 310).
Many formal requirements are also motivated by consumer protection, e.g. B. the need to have a property purchase agreement notarized by a notary ( (1) BGB). This is intended to ensure expert advice from the notary public for contracts that are typically concluded for large sums and with the intention of permanent property acquisition. In addition, there are formal requirements that can be clearly assigned to consumer law, such as B. the written form for part- time housing and consumer loan contracts, but also the text form for instructions to the consumer about the right of withdrawal for certain types of contract (consumer loan, part-time right-of-residence contract) or distribution channels (e.g. door-to-door sales, distance selling contracts) .
Many regulations of public law , which are scattered over numerous laws, serve the (mostly health) consumer protection. These laws usually oblige manufacturers and dealers of goods to comply with certain minimum standards with regard to raw materials, other starting materials or additives or with regard to manufacturing processes or packaging. In German law, the most important legal norm of this kind is the law on the movement of food , tobacco products, cosmetic products and other consumer goods ( Food and Consumer Goods Act - LMBG) or its successor, the Food and Feed Code (LFGB). As a result of this law, numerous ordinances with very detailed provisions have been issued, e.g. B. the Cosmetics Ordinance . Other important laws in this area are, for example, the (now repealed) Meat Hygiene Act and the Medicines Act .
Since the entry into force of the Insolvency Code (InsO) the beginning of 1999 there is a possibility for payment dispensation ( residual debt gem. § et seq. InsO) by court order for over-indebted consumers after completion of a minimum of six years of consumer insolvency proceedings .
Even competition law (regulated primarily in the law against unfair competition - UWG), which previously only protected competitors from one another and only indirectly (reflexively) considered the interests of the consumer, has a consumer-protective task according to the current legal situation (so expressly UWG).
The consumer centers are in Germany in accordance with para. 1 no. 4 Legal Services Act (July 1, 2008, previously § 3 no. 8 legal advice law ) the right to non-judicial care and can, within the limits of their task circle alongside attorneys out of court advice consumers and represented.
In the past few years, public awareness of consumer protection has increased significantly. Food scandals, dangerous household appliances, deregulation of former state monopolies (e.g. post, telephone, rail) or regional cartels (e.g. electricity), new types of contracts (e.g. mobile phone contracts) pose new challenges for consumers. Politics and Legislation in the EU, the federal government and the federal states are increasingly turning to the topic. In the wake of food scandals, for example, the former Federal Ministry for Food, Agriculture and Forests was renamed the Federal Ministry for Consumer Protection, Food and Agriculture in 2001 . In recent years, the sometimes dubious business practices of telecommunications companies have become a key issue in consumer protection.
In Berlin , a senate administration has had the term consumer protection in its name since 2002 . The approx. 200 consumer protection organizations active in the city are combined in a consumer protection network and present themselves in a consumer guide, a kind of yellow pages on the Internet. A prelude was set with a Long Night of Consumer Protection , a public event with thousands of visitors. Since then, the Senate Department for Justice, Consumer Protection and Anti-Discrimination has regularly organized consumer markets for World Consumer Day, has organized youth consumer protection days and senior conferences across Germany for the first time , brings consumer facilities to city quarters with high unemployment and a high proportion of people with a migration background, and presents a comprehensive overview of all advice and support offers at the Berlin Consumer Festival for consumers as a street party on Kurfürstendamm, the Berlin shopping mile par excellence.
In the meantime, consumer protection is scientifically anchored at various universities. The first corresponding chair (in combination with banking and capital market law) was established in 2008 at the University of Hamburg . In 2010 the University of Bayreuth established an endowed chair for consumer law, which is financed by the Federal Ministry of Food, Agriculture and Consumer Protection . Since 2010, there has been a junior professorship for civil law and European private law at the Humboldt University in Berlin , with a special focus on consumer and competition law.
Since the end of 2013, consumer protection at the federal level has been officially part of the Federal Ministry of Justice and Consumer Protection .
According to the Federal Data Protection Act (BDSG) in accordance with Section 31, Paragraph 1, scoring is defined as the “use of a probability value for a certain future behavior of a natural person in relation to the contractual relationship with this person”. However, the question arises again and again how scoring is used. In order to prevent the abuse of scoring, the Advisory Council on Consumer Issues in the Federal Ministry of Justice and Consumer Protection presented the study "Consumer Scoring" on October 31, 2018.
The aim is not to ban scoring. Comprehensible, fair and transparent procedures should be achieved. The study therefore recommends: Making scoring understandable for consumers . The scoring method used should be understandable to the average consumer. A supervisory authority or at least a consumer organization should be aware of complex procedures.
- Promote scoring knowledge and skills . The knowledge of the basic aspects should be conveyed.
- Check and disclose discrimination . Consumers' right to information should be strengthened.
- Ensure telematics-free option . In the insurance sector in particular, non-discriminatory contracts with and without a telematics option should be offered.
- Ensure score quality . Quality assurance procedures for algorithms should be developed. Providers in the sensitive areas should present their algorithms to the authorities and make them verifiable.
- Ensure data quality . The scoring provider should ensure that the data is correct, complete and up-to-date.
- Improve supervision . The federal government should set up a digital agency as a competence center that supports individual authorities.
- Prevent super scores . The development of super scores should first be carefully monitored and analyzed. A public discourse should be held about the values that are changing as a result.
The consumer protection ministers of the federal states stated at their conference in May 2019 that decisions based on algorithms in everyday consumer life have increased rapidly. They called on the federal government to create a well-equipped regulatory oversight for computer-aided decision-making processes and to ensure more transparency and protection. They decided that it had to be clear which data categories and criteria would be used for which purpose and how the data would be included in the assessment.
In October 2019, the responsible minister Christine Lambrecht presented key points on her agenda. She is working on a law for fair consumer contracts. It will in future be a duty to the telephone contract be documented spoken before the contract is finally enacted.
Mitigating the consequences of the COVID-19 pandemic
For many consumer contracts , the continuing obligations are and concluded before March 8, 2020 is with art. 5 of the Act on lessening the effects of COVID-19 pandemic in civil, bankruptcy and criminal law by 30 June 2020 Consumers and micro-enterprises that are currently unable to meet the entrepreneurs' payment claims due to the consequences of the COVID-19 pandemic in Germany have established a right to refuse performance (Art. 240 § 1 EGBGB new version ). This ensures that the debtors are not cut off from basic supply services (electricity, gas, telecommunications, and water, if regulated by civil law) because they are unable to meet their payment obligations due to the crisis.
Criticism of consumer protection
There is fundamental criticism of individual consumer protection concepts and measures.
Consumer protection and freedom of contract
In many cases, consumer protection restricts the freedom of contract . Certain legally prescribed regulations may not be deviated from to the detriment of the consumer. For example, as a consumer protection measure , the legislature introduced a warranty obligation for used goods (e.g. used cars ). If a consumer buys goods from a commercial supplier (e.g. from a used car dealer), the seller may not contractually require the buyer to waive the warranty.
This restriction of the freedom of contract is intended to lead to circumvention and avoidance processes: In Germany, due to this legal situation, dealers endeavor to no longer sell used vehicles for their own account, as they believe that the risk is not acceptable. Instead, the dealer nowadays usually acts as an intermediary for a purchase from private to private. The Federal Court of Justice has not yet made a final decision to what extent this practice is permissible or violates the legal prohibition of "circumvention transactions" (Section 475 (1) sentence 2 BGB).
Elimination of the polluter pays principle
The provider complains that consumer protection legislation (e.g. the General Terms and Conditions Act , which has since been incorporated into the German Civil Code ) often means that costs can no longer be charged according to the originator. For example, allowed banks to their customers any costs for the return of direct debits or for processing account seizures into account.
Enforcement of consumer law
Another problem is to legally enforce consumer law regulated by law. If a consumer suffers little or no financial damage, a lawsuit is not worthwhile for him or involves disproportionate risks. Triggered by the diesel scandal , the law introducing a civil procedural model declaratory action came into force on November 1, 2018, which enables consumer associations to file model declaratory actions against companies in order to enforce consumer rights . The judicial action of the consumer associations must join at least 50 citizens who feel that a company has harmed them in a particular matter, and enter them in a complaint register. The connection is free of charge for consumers.
Reduction of innovations
The American economist Milton Friedman criticizes consumer protection using the example of the drug approval system. He is particularly critical of the fact that consumer protection agencies tend to react cautiously to innovations and, for example, require an inappropriately large number of tests to rule out harmful side effects before new drugs are approved. Friedman claims that there is “strong evidence” that more people are harmed or killed by late approval than are harmed by (side) effects.
Consumer protection and inattentive consumers
British economist Mark Armstrong emphasizes that excessive consumer protection can lead to moral hazard . Because it lowers the incentives for consumers to take care of themselves. So it can happen that consumer protection is detrimental to consumers overall.
Selected consumer organizations according to their geographical area of activity:
- Association of Energy Consumers
- Association of the Insured (BdV)
- Federation for Investor and Consumer Protection (BAV)
- German Consumer Association
- German Foundation for Patient Protection
- Stiftung Warentest
- Consumer initiative
- Consumer advice center
- German Tenants' Association
- German environmental aid
- Consumer Protection Center (VSZ) Ostbelgien
- Association for consumer information
- Consumer Protection Association Austria
- Associazione consumatrici e consumatori della Svizzera italiana ACSI
- Fédération romande des consommateurs FRC
- Consumer forum kf
- Foundation for Consumer Protection SKS
Authorities and committees
- Directorate-General for Health and Food Safety
- Consumer Policy Commissioner
- Employment, Social Policy, Health and Consumer Affairs Council
- Federal Office of Consumer Protection and Food Safety
- Federal Institute for Consumer Health Protection and Veterinary Medicine
- Committee on the Internal Market and Consumer Protection
- Committee on Food, Agriculture and Consumer Protection
- Ministry for Rural Areas, Nutrition and Consumer Protection Baden-Württemberg
- Bavarian State Ministry for the Environment and Consumer Protection
- State Office for Environment, Health and Consumer Protection , Brandenburg
- Authority for Justice and Consumer Protection , Hamburg
- Hessian Ministry for the Environment, Climate Protection, Agriculture and Consumer Protection
- Lower Saxony State Office for Consumer Protection and Food Safety
- Ministry for Climate Protection, Environment, Agriculture, Nature and Consumer Protection of the State of North Rhine-Westphalia
- State Office for Nature, Environment and Consumer Protection North Rhine-Westphalia
- Saxon State Ministry for Social Affairs and Consumer Protection
- Senate Department for Justice, Consumer Protection and Anti-Discrimination , Berlin
- euvr - Journal of European Company and Consumer Law / Journal of European Consumer and Market Law. Vienna, .
- Frank Janning: The late birth of a political field. The institutionalization of consumer protection policy in Germany and in international comparison (= modern government. Writings on a new government doctrine. Vol. 8). Nomos, Baden-Baden 2011, ISBN 978-3-8329-5723-0 .
- Eike von Hippel: consumer protection. 3rd, revised edition. Mohr, Tübingen 1986, ISBN 3-16-644969-8 .
- Sebastian Nessel: Consumer Organizations and Markets. VS Verlag, Wiesbaden 2016, ISBN 978-3-658-11033-8 .
- European Commission, Directorate General Health and Consumer Protection (SANCO)
- European Union - Consumer Activity
- Consumer policy / consumer protection. In: Gabler Wirtschaftslexikon. Springer Gabler / Springer Fachmedien Wiesbaden, accessed on October 18, 2014 .
- Jochen Sprotte: The control system of the Nuremberg council over the medieval brewers and their beers . In: Yearbook of the Society for the History of Brewing e. V. 2018, ISSN 1860-8922 , p. 233-290 .
- Consumer : Solutions for everyday problems - Interview with Finanztip editor -in- chief Hermann-Josef Tenhagen . Fachjournalist.de, December 20, 2018
- See e.g. B. Alexander Hagelüken, Silvia Liebrich, Jan Willmroth: How the US negotiators attack Europe's consumer protection. In: Süddeutsche Zeitung. May 2, 2016 or “USA put EU under extreme pressure in TTIP” In: Die Zeit vom May 1, 2016.
- Cf. Norbert Häring: Money laundering in Germany - The trace of money. In: Handelsblatt. May 2, 2016.
- See Lutz Reiche Finanzaufsicht discovers consumer protection in Manager Magazin on May 10, 2016.
- Cf. Karl Leban FMA calls for corsets for fintechs in Wiener Zeitung of June 29, 2018.
- Chair for civil and commercial law, in particular banking, capital market and consumer law
- Consumer-friendly scoring. In: svr-verbrauchfragen.de , October 2018. (PDF; 3.3 MB)
- Against fake shops and for more transparency in: Berliner Zeitung from May 25/26, 2019
- Christian Rath, "Not only Sunday speeches " LTO of October 10, 2019
- Draft of a law to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedure law BT-Drs. 19/18110 of March 24, 2020, p. 4
- Corona aid package and other options: When money is running out, North Rhine-Westphalia Consumer Center, March 30, 2020.
- Theresa Dräbing: Together against the car companies , Berliner Zeitung, July 1, 2019
- Milton Friedman on Libertarianism
- Patrick Bernau : The disadvantage of consumer protection . In: Conclusion - the business blog. Frankfurter Allgemeine Blogs . September 8, 2013. Retrieved September 8, 2013.
- Consumers International - The Global Voice of Consumers , Homepage (online)
- Federation for Investor and Consumer Protection e. V. , homepage (online)
- Konsumentblatt.at of the Consumer Protection Association Austria.