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What determines national convergence of EU law? Measuring the implementation of consumer sales law

  • Catalina Goanta (a1) and Mathias Siems (a2)

Abstract

Harmonisation and legal convergence are core tasks of the EU. This paper explores the question about the determinants for national convergence of EU law, specifically applied to the ever-growing body of European consumer sales law. The measurement of national convergence is based on a unique coding of five directives in seven Member States. Using the fuzzy-set Qualitative Comparative Analysis (fsQCA) method, the paper finds that differences in national convergence can partly be explained by favourable features of the corresponding directives; however, mainly, they are the result of a combination of domestic political factors and, to a lesser extent, the country characteristics. This has important policy implications, for instance, on the need to ‘bring in politics’ in the debate about convergence, harmonisation and consumer sales law.

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*Corresponding author email: catalina.goanta@maastrichtuniversity.nl

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We thank Gijs van Dijck, Gerhard Schnyder, William Hubbard, the participants of the Fifth Empirical Legal Studies Workshop at the University of Amsterdam and the Second Conference on Empirical Legal Studies in Europe at KU Leuven and two anonymous reviewers for helpful comments. The remaining errors are entirely our responsibility.

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References

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1 Specifically for consumer law Schulte-Nölke, H et al. (eds) EC Consumer Law Compendium: The Consumer Acquis and its Transposition in the Member State (Munich: Sellier European Law Publishers, 2008). For further references, for consumer law as well as other areas of law, see Section 2 (b), below.

3 See the references in Section 2 (c), below.

4 See further Section 2 (a) and (b) below.

5 See references and explanations in Section 3 (a) below.

6 The path-breaking study applying fsQCA to law was Arvind, TT and Stirton, LExplaining the reception of the Code Napoleon in Germany: a fuzzy-set qualitative comparative analysis’ (2010) 30 Legal Studies 1. Other forms of QCA have been applied by Castillo-Ortiz, PJ et al. ‘Gender, intersectionality, and religious manifestation before the European Court of Human Rights' (2019) 18 Journal of Human Rights 76; Ortiz, PJ CastilloCouncils of the judiciary and judges’ perceptions of respect to their independence in Europe’ (2017) 9 Hague Journal for the Rule of Law 315; Ortiz, PJ Castillo and Medina, IPaths to the recognition of homo-parental adoptive rights in the EU-27: a QCA analysis’ (2015) 22 Contemporary Politics 40; Ortiz, PJ Castillo EU Treaties and the Judicial Politics of National Courts: A Law and Politics Approach (Abingdon: Routledge, 2016).

7 See eg Cafaggi, FThe making of European private law: governance design’ in Cafaggi, F and Muir-Watt, H (eds) Making European Private Law: Governance Design (Cheltenham: Edward Elgar, 2008) p 289; Goode, RContract and commercial law: the logic and limits of harmonisation’ (2003) 7(4) Electronic Journal of Comparative Law, available at http://www.ejcl.org/74/art74-1.html.

8 European Commission (1985) ‘White Paper on Completing the Internal Market’, COM(85) 310. See also Micklitz, H-WEuropean consumer law’ in Jones, E et al. (eds) The Oxford Handbook of the European Union (Oxford: Oxford University Press, 2012) p 526 (move towards market-focused law).

9 These are the Directives analysed in this paper, see further Section 2 (a), below.

10 Twigg-Flesner, CThe (non-)impact of harmonizing measures on English legal terminology’ (2012) 20 European Review of Private Law 1369.

11 Gómez-Pomar, F and Ganuza, JJAn economic analysis of harmonisation regimes: full harmonisation, minimum harmonisation or optional instrument?’ (2011) 7 European Review of Contract Law 275.

12 Stuyck, JEuropean consumer law after the Treaty of Amsterdam: consumer policy in or beyond the internal market’ (2000) 37 Common Market Law Review 367.

13 Sørensen, MJIn the name of effective consumer protection and public policy!’ (2016) 24 European Review of Private Law 791.

14 Bar-Gill, O and Ben-Shahar, ORegulatory techniques in consumer protection: a critique of European consumer contract law’ (2013) 50 Common Market Law Review 109.

15 For variations of the use of the terms ‘convergence’ and ‘harmonisation’ see eg Goanta, C Convergence in European Consumer Sales Law (Antwerp: Intersentia, 2016) pp 129; Leeuwen, B van European Standardisation of Services and its Impact on Private Law: Paradoxes of Convergence (Oxford: Hart Publishing, 2017) pp 1227.

16 See generally Jackman, SMeasurement’ in Box-Steffenmeier, JM et al. (eds) The Oxford Handbook of Political Methodology (Oxford: Oxford University Press, 2008) p 119. For related questions in the research on ‘numerical comparative law’ and ‘leximetrics’ see eg Siems, M Comparative Law (Cambridge: Cambridge University Press, 2nd edn, 2018) pp 180228; Adams, Z et al. ‘The CBR-LRI dataset: methods, properties and potential of leximetric coding of labour laws’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 59.

17 We focused on the OECD Handbook given that it is one of the few resources which can be used as a checklist for the building of a composite indicator: OECD Handbook on Constructing Composite Indicators: Methodology and User Guide (2008), available at http://www.oecd.org/std/42495745.pdf. For a good example of a composite indicator see also M Nardo et al ‘The consumer empowerment index’, JRC Scientific and Technical Reports, 2011, available at http://composite-indicators.jrc.ec.europa.eu/.

18 Goanta, above n 15, pp 164–175.

20 This factor sometimes requires normalisation, depending on the number of novel concepts selected. It is done by creating an average, which then becomes the maximum value allotted to one individual such concept (eg if two concepts are identified, the maximum value given to each if the concept has been transposed correctly is 0.5).

21 The same normalisation approach as with the previous factor was applied.

22 Thus, a change in terminology matters, as it leads to divergent practical applications of the law and contradicts the existence of the EU as a sui generis juridical order shaped by a common identity: eg Directive 85/577/EEC includes the right of consumers to withdraw from the contract; yet, when Romania and France chose to transpose this concept through that of ‘termination’, the legal nature of this right was transformed.

23 Bright, SWinning the battle against unfair contract terms’ (2000) 20 Legal Studies 331.

24 The Office of Fair Trading v Foxtons Ltd [2009] EWHC 1681 (Ch), para 18.

25 European instruments have long been drafted with the requirement that the transposing legislation must make reference to the specific implemented Directive, see for instance Art 10(2) of Directive 93/13/EEC or Art 19 of Directive 2005/29/EC; however, when transposing European instruments through civil code provisions, this reference cannot be inferred.

26 Directive 85/577/EEC; Directive 93/13/EEC; Directive 97/7/EC; Directive 99/44/EC; Directive 2005/29/EC.

27 Note that the question of the UK's departure from the EU is not relevant here, as we examine a period well in advance of the Brexit referendum of 2016.

28 Directive 2007/64/EC on payment services; Directive 2000/31/EC on certain legal aspects of information society services; Directive 2008/48/EC on consumer credit.

29 Eg Directive 2011/83/EU on consumer rights (which also amended and repealed some of the prior directives).

30 The underlying study builds on the selection of directives and countries, see Goanta, above n 15.

31 See Section 3, below.

32 See eg García-Castro, R et al. ‘Bundles of firm corporate governance practices: a fuzzy set analysis’ (2013) 21 Corporate Governance: An International Review 390; G Schnyder ‘Measuring corporate governance: lessons from the “bundles approach”’, CBR Working Paper No 438/2012, available at http://ssrn.com/abstract=2220616.

33 Eg OECD, above n 17.

34 Eg Legrand, PPublic law, europeanisation and convergence: can comparatists contribute?’ in Beaumont, P et al. (eds) Convergence and Divergence in European Public Law (Oxford: Hart Publishing, 2002) p 225; Joerges, CThe europeanisation of private law as a rationalisation process and as a contest of disciplines – an analysis of the Directive on Unfair Terms in Consumer Contracts’ (1995) 3 European Review of Private Law 175; Hesselink, M The New European Legal Culture (The Hague: Kluwer International, 2002).

35 For changes to the EU's economic policy see eg Jabko, N Playing the Market A Political Strategy for Uniting Europe, 1985–2005 (Ithaca, NY: Cornell University Press, 2006). For two specific areas of law see eg Duncan, BHealth policy in the European Union: how it's made and how to influence it’ (2002) 324 British Medical Journal 1027; Eising, R and Jabko, NMoving targets: institutional embeddedness and domestic politics in the liberalization of EU electricity markets’ (2001) 34 Comparative Political Studies 742.

36 Goanta, above n 15.

37 The cut-off between law/high was set at ‘10’ (information coded up to October 2016).

38 For the latter see eg L Tholoniat ‘The career of the open method of coordination: lessons from a “soft” EU instrument’ (2010) 33 West European Politics 93.

39 European Parliament, Legislative Train Schedule (Common European Sales Law), available at http://www.europarl.europa.eu/legislative-train/theme-connected-digital-single-market/file-common-european-sales-law. See also Twigg-Flesner, CGood-bye harmonisation by directives, hello cross-border only regulation? – a way forward for EU consumer contract law’ (2011) 7 European Review of Contract Law 235.

40 Cafaggi, F and Nicita, AThe evolution of consumer protection in the EU’ in Eger, T and Schäfer, H-B (eds) Research Handbook on the Economics of European Union Law (Cheltenham: Edward Elgar, 2012) p 263.

41 See eg Beckers, ACorporate codes of conduct and contract law: a doctrinal and normative perspective’ in Brownsword, R et al. (eds) Research Handbook on Contract and Regulation (Cheltenham: Edward Elgar, 2017) p 89; Cafaggi, FSelf-regulation in European contract law’ (2007) 1 European Journal of Legal Studies 163; Thøgersen, J et al. ‘Consumer responses to ecolabels’ (2010) 44 European Journal of Marketing 1787.

42 Beale, HGeneral clauses and specific rules in the principles of European contract law: the good faith clause’ in Grundmann, S and Mazeaud, D (eds) General Clauses and Standards in European Contract Law (The Hague: Kluwer Law International, 2006) p 205; Teubner, GLegal irritants: good faith in British law or how unifying law ends up in new divergences’ (1998) 61 Modern Law Review 11; Wilhelmsson, TThe abuse of the “confident consumer” as a justification for EC consumer law’ (2004) 27 Journal of Consumer Policy 317.

43 R Mańko ‘Unfair contract terms in EU law, Unfair Terms Directive and common European sales law’, EU Parliament Library Briefing, 19 September 2013; Willett, CGeneral clauses and the competing ethics of European consumer law in the UK’ (2012) 71 Cambridge Law Journal 412; J Stuyck et al ‘Confidence through fairness? The new directive on unfair business-to-consumer commercial practices in the internal market’ (2006) Common Market Law Review 107.

44 See eg Weatherill, SInterpretation of the directives: the role of the court’ in Hartkamp, A et al. (eds) Towards a European Civil Code (The Hague: Kluwer Law International, 2011) p 181; Weatherill, SThe limits of legislative harmonisation ten years after tobacco advertising: how the court's case law has become a “drafting guide”’ (2011) 12 German Law Journal 827; Beck, G The Legal Reasoning of the Court of Justice of the EU (Oxford: Hart Publishing, 2013).

45 For further explanation, see Goanta, above n 15, p 171: ‘In recent years, especially when dealing with the UCPD, the Court started issuing orders instead of judgments. These orders are procedurally justified using Article 99 of the Rules of the Court. The fact that the Court still issues reasoned opinions in spite of the high load of existing case law can be interpreted to mean that national courts simply do not understand how to apply transposing legislation […] It thus follows that the [national] courts behind these specific preliminary references have asked questions that the Court had addressed before. This stands to show that even in spite of the growing body of case law on the UCPD, national courts continue to look at the Court of Justice for interpreting Article 3 of the directive and its interaction with national provisions’.

46 For details see Goanta, above n 15.

47 As done in Zhelyazkova, AComplying with EU directives’ requirements: the link between EU decision-making and the correct transposition of EU provisions’ (2013) 20 Journal of European Public Policy 702.

48 Hillebrandt, MZ et al. ‘Transparency in the EU Council of Ministers: an institutional analysis’ (2014) 20 European Law Journal 1.

50 The non-empirical literature on legal convergence also touches upon additional factors arising out of the supra-national policy-making nature of the European Union. See eg Caruso, DThe missing view of the cathedral: the private law paradigm of European legal integration’ (1997) 3 European Law Journal 3; Joerges, CTaking the law seriously: on political science and the role of law in the process of European integration’ (1996) 2 European Law Journal 105; Wilhelmsson, TThe legal, the cultural and the political – conclusions from different perspectives on harmonisation of European contract law’ (2002) 13 European Business Law Review 541. For the political science literature see Zhelyazkova, above n 47, as well as the further references in the present section.

51 See the discussion in Siems, M and Deakin, SComparative law and finance: past, present and future research’ (2010) 166 Journal of Institutional and Theoretical Economics 120.

52 This refers to the middle value of the data: (i) for EU year adoption; and (ii) national enactment. However, for Romania we only considered the national implementation year.

53 For Romania information is only reported from 2007: thus, here, this year has also been used for the prior implementations.

54 Based on the information of Schulte-Nölke et al, above n 1.

55 Börzel, T et al. ‘Obstinate and inefficient: why member states do not comply with European law’ (2010) 43 Comparative Political Studies 1363.

56 Up to the year 2000, however, it only coded in a five-year interval (ie 1980, 1985, 1990, 1995, 2000): thus, here, we extrapolated the intermediate scores for the other years.

57 Eg Börzel et al, above n 55.

58 For the inherent limitations of the choice of conditions see also the Conclusion, below.

60 Aggregating the data for all directives, the ranking of the seven countries is: (1) Ireland (26.1); (2) Romania (22.8); (3) UK (22.25); (4) Germany (19); (5) Belgium (17.3); (6) France (16.18); (7) The Netherlands (10.46).

61 As in the Hostede data, see above n 59.

62 Other factors might influence convergence by proxy, such as: consumer rights awareness; consumer preferences; the number of cases per judge; judicial training; or the number of lawyers specialised in European law in relation to the total number of lawyers, etc. While relevant for convergence in general, such data is not consistently available and would pose further issues for the accuracy of the results.

63 Kaeding, MNecessary conditions for the effective transposition of EU legislation’ (2008) 36 Policy & Politics 261; Börzel et al, above n 55.

64 Eg Finke, D and Dannwolf, TWho let the dogs out? The effect of parliamentary scrutiny on compliance with EU law’ (2015) 22 Journal of European Public Policy 1127 at 1136 (for legislative discontinuity); Kaeding, above n 63, at 266 (for year of election cycle).

65 Kaeding, M Better Regulation in the European Union: Lost in Translation or Full Steam Ahead? The Transposition of EU Transport Directives Across Member States (Leiden: Leiden University Press, 2007), as well as Kaeding, above n 63.

66 Thomann, ECustomizing Europe: transposition as bottom-up implementation’ (2015) 22 Journal of European Public Policy 1368.

67 See the references above n 6.

68 Eg Misangyi, VF et al. ‘Embracing causal complexity: the emergence of a neo-configurational perspective’ (2017) 47 Journal of Management 255; Haxhi, I and Aguilera, RVAn institutional configurational approach to cross-national diversity in corporate governance’ (2017) 54 Journal of Management Studies 261; Witt, MA and Jackson, GVarieties of capitalism and institutional comparative advantage: a test and reinterpretation’ (2016) 47 Journal of International Business Studies 778.

69 Marx, A et al. ‘The origins, development, and application of qualitative comparative analysis: the first 25 years’ (2014) 6 European Political Science Review 115. Closer interaction between theory and data is also advocated for more conventional empirical approaches, see eg G Schnyder et al ‘Twenty years of “law and finance”: time to take law seriously’ Socio-Economic Review, available at https://doi.org/10.1093/ser/mwy041; Achen, CHToward a new political methodology: microfoundations and ART’ (2002) 5 Annual Review of Political Science 423.

70 For all of the following quotes: www.u.arizona.edu/~cragin/fsQCA/index.shtml.

71 See Section 2, above (the exception is ‘no interruption by elections’).

72 Other studies (eg Arvind and Stirton, above n 6) code the data in a way that only specific intermediate scores are allowed (eg, 0.5, or 0.25, 0.5 and 0.75). We also checked whether such an approach would make a difference, but our results remain unchanged; see also Schneider, CQ and Wagemann, C Set-Theoretic Methods for the Social Sciences: A Guide to Qualitative Comparative Analysis (Cambridge: Cambridge University Press, 2012) p 38 (choice of strategy makes little difference for results). Appendix 1 of this paper displays the descriptive statistics of this dataset as well as a table of correlations of the conditions.

73 C Ragin and S Davey, fs/QCA, version 3.0, available at www.socsci.uci.edu/~cragin/fsQCA/software.shtml.

74 See Section 2 (a), above.

75 As also done, eg, by Haxhi and Aguilera, above n 68; Arvind and Stirton, above n 6.

76 Of course, the former also has degrees of subjectivity, as explicitly accepted in Bayesian statistics but also inevitable elsewhere; cf eg Fenton, N et al. ‘Bayes and the law’ (2016) 3 Annual Review of Statistics and Its Application 51 at 70 (‘… there is the major challenge of getting legal professionals to accept the validity of subjective probabilities that are an inevitable part of Bayes. Yet, ultimately, any use of probability – even if it is based on frequentist statistics – relies on a range of subjective assumptions’). See also the comparison of the assumptions in QCA and regression analysis in Seawright, JQualitative comparative analysis vis-à-vis regression’ (2005) 40 Studies in Comparative International Development 3.

77 See Appendix 2, below.

78 See C Ragin User's Guide to Fuzzy-Set / Qualitative Comparative Analysis (University of Arizona 2008) p 46, also available at www.u.arizona.edu/~cragin/fsQCA/download/fsQCAManual.pdf.

79 For more technical definitions see Ragin, above n 78, p 85 (‘coverage measures how much of the outcome is covered (or explained) by each solution term and by the solution as a whole’; ‘consistency measures the degree to which solution terms and the solution as a whole are subsets of the outcome’).

80 Eg, Arvind and Stirton, above n 6.

81 Eg, Witt and Jackson, above n 68; García-Castro et al, above n 32.

82 The cases with more than 0.5 membership are, referring to the five directives in a chronological order (see Table 2, above): for pathway (1): Romania 1,2,4,5; Netherlands 1,3,4,5; Ireland 1,3,4,5; Belgium 1,5; Germany 1,5; France 1; for pathway (2): Germany 2,3,4,5, UK 2,3,4, Netherlands 1,4, Belgium 1; for pathway (3): UK 1,3,5, Germany 1,3, France 5, Romania 4; for pathway (4) Romania 1,2,3,4,5, Ireland 2, Germany 1; for pathway (5): Netherlands 3,5, Germany 3, UK 3, France 3; for pathway (6): France 2. The cases with more than 0.7 membership have been underlined in bold just above.

83 Accounting for causal complexity is one of the advantages of (fs)QCA, see Misangyi at al, above n 68.

84 The consistencies for the necessity of the conditions are: EU convergence: 0.5; No existing legislation: 0.76; Good legal system: 0.7; Public support for EU: 0.75; Effective government: 0.77; Left-wing government: 0.66; No interruption by elections: 0.54.

85 See also the Conclusion, below.

86 Bagchi, AThe political morality of convergence in contract’ (2018) 24 European Law Journal 36.

87 For instance, see Tenreiro's article on the challenging negotiations around the Unfair Contract Terms Directive from a perspective of how certain Member States influenced negotiations: Tenreiro, MThe Community Directive on Unfair Terms and National Legal Systems – the principle of good faith and remedies for unfair terms’ (1995) 3 European Review of Private Law 273. For research considering the role of national politics see Section 2 (c), above.

88 See n 82, above.

89 The consistencies for the necessity of the conditions are here: EU convergence: 0.64; No existing legislation: 0.47; Good legal system: 0.68; Public support for EU: 0.66; Effective government: 0.75; Left-wing government: 0.80; No interruption by elections: 0.74.

90 The cases with more than 0.5 membership are, referring to the five directives in a chronological order (see Table 2, above): for pathway (1): Netherlands 2,3,5, Ireland 1,3, Belgium 4,5, France 3; for pathway (2): France 3,4,5, UK 1,4, Germany 2,3, Belgium 4; for pathway (3): Germany 2,5, France 1, Ireland 1, Netherlands 1. The cases with more than 0.7 membership have been underlined in bold just above.

91 See n 90, above.

92 The most recent initiative is the so-called New Deal for Consumers, see https://ec.europa.eu/info/law/law-topic/consumers/review-eu-consumer-law-new-deal-consumers_en

93 For the choice of possible determinants in this paper see Section 2 (c), above.

94 For example, there could be national political dynamics in particular sectors, such as the influence of lobbying; for such cases see eg Duncan, above n 35; Cioffi, JW and Höpner, MThe political paradox of finance capitalism: interests, preferences, and center-left party politics in corporate governance reform’ (2006) 34 Politics & Society 463; the role of politics may also be related to behavioural aspects of consumer protection law, as discussed in Micklitz, H-W et al. (eds) Research Methods in Consumer Law: A Handbook (Cheltenham: Edward Elgar, 2018).

95 Future research could examine these groups of variables as nested within clusters, analogous to a form of multilevel item response theory model.

96 For the previous literature see the references in Section 2 (b) and (c), above.

We thank Gijs van Dijck, Gerhard Schnyder, William Hubbard, the participants of the Fifth Empirical Legal Studies Workshop at the University of Amsterdam and the Second Conference on Empirical Legal Studies in Europe at KU Leuven and two anonymous reviewers for helpful comments. The remaining errors are entirely our responsibility.

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