A. The fact of commodification

In principle, the term ‘commodification’ could be used in a merely descriptive sense, to refer to instances where something is turned into a commodity. Commodities are fungible goods, which means that in the eyes of the market there is no difference between specific instantiations of the good; they are all interchangeable and have the same market price, which is determined by (aggregate) supply and demand. Thus, the notion of commodification is closely related to markets. Indeed, commodification is a form of marketisation.^{Footnote 2} Market agents have treated not only certain goods, such as grain, gold, and oil, as commodities, but also certain services. Karl Marx famously demonstrated how in the capitalist economies of the 19^th century labour-power, and hence workers, came to be understood as fungible:^{Footnote 3} the human commodity (Menschenware).^{Footnote 4} The literature on commodification has pointed to many contemporary instances of commodification, underscoring the ever-expanding role of markets in our lives. Classical and more recent instances of commodification discussed in the literature include human blood, human milk,^{Footnote 5} human organs, sex (sexual services), pregnancy (surrogacy), safety (security services), public space (shopping malls), news, education (private schools), legal scholarship,^{Footnote 6} passports, a right to jump the queue (fast lanes), a right to pollute (emission trading schemes), personal data, and law (regulatory competition),^{Footnote 7} among many others.^{Footnote 8}

B. The law of commodification

C. What is wrong with commodification

The term ‘commodification’ is not usually used in a merely descriptive sense. Rather, when a practice or phenomenon is referred to as ‘commodification’ the implication is normally that there is something wrong with it. The idea is that a thing or activity is brought to the market and traded there for money that ought not to be exchanged for money (because money cannot capture its value), or be understood as fungible (because it is unique), or be considered a good or service (because it is not an object, but a subject, or a part or aspect of them). This raises the normative question of what, if anything, is wrong with commodification. Very different answers have been given.

A. Alienation through commodification

Before further outlining and defending a specific version of deontological (moral) critique of commodification, I will now point to a further layer of moral complexity by briefly addressing the normative links between commodification and alienation.

A person may have become alienated when they experience a sense of disconnectedness from, as the case may be, the society they are part of (social alienation), the polity or political community to which they belong (political alienation), the laws that claim to apply to them (legal alienation), specific others (relational alienation), or from themselves (self-alienation). These different instances of alienation may overlap, and one of them may also lead to another. In particular, self-alienation, where one experiences oneself as alien, is usually a consequence of social, political, or legal alienation.^{Footnote 33}

Just like commodification, also alienation could be understood, in principle, as a purely descriptive concept, referring in this case to a state of mind or mental condition. However, alienation, as well as its (near) synonym estrangement, is not normally understood as a state of mind any person would ever wish to be in, or one it would be good or right for anyone to be in – quite the contrary. Usually – and especially in critique –, the term is used to express indignation with regard to a specific instance of human suffering, which may be manifested in apathy or despair.^{Footnote 34} As we will see, just like commodification so too alienation is best understood as a normatively dependent concept.^{Footnote 35}

In Karl Marx’s thought, alienation is inextricably linked to commodification: alienating labour is commodified labour. The young Marx set out his ideas on alienated labour in what are usually referred to as the Economic and Philosophical Manuscripts.^{Footnote 36} In the capitalist system, where workers exchange their labour for wages, as a commodity on the labour market, they come to understand their labour,^{Footnote 37} and the product of it, and indeed themselves, as a thing external to them, as an alien object. In other words, the very understanding of labour as a commodity entails the alienation and estrangement of workers from their labour, from the products of their labour, from each other, and from themselves.

It is not difficult to see how other instances of commodification can lead to similar patterns of alienation. If a person ‘sells’ their blood, their kidney, their ‘gestational service’, their ‘sexual service’, or their personal data on the market, as a generic good or service – a commodity –, then they are likely not only to see these ‘goods’ and ‘services’ as things external to them, but they may also become estranged and alienated from themselves and from the society that understands these practices as market exchanges of commodities against money, and from the polity that enables and supports such instances of commodification.

Just like in the case of commodification, as said, there is a descriptive side to alienation: how individuals and groups (or even society as a whole) come to understand themselves and each other. And just like in the case of commodification, alienation too has an important structural component, which is sustained by institutions such as law, including private law (and vice versa).^{Footnote 38} However, also just like in the case of commodification, here too the usual understanding is that alienation is not a mere neutral fact. Rather, there is something profoundly wrong with it.

Therefore, here too the question arises: what exactly is wrong with alienation? And here too – in addition to the libertarian view that alienation is not a moral or political problem, given that no one is interfering with anyone’s freedom, and the welfarist–utilitarian account, which is willing to count alienation as a problem only to the extent that people prefer themselves or others not to become alienated (which frankly sounds quite alienating in itself) –, among the political views that do consider alienation problematic we can distinguish, again, between teleological and deontological accounts.^{Footnote 39}

B. The teleological critique of alienation

As to teleological conceptions, they understand alienation in terms of impeded or otherwise failed self-realisation, self-authorship, or achievement of a meaningful, authentic, or otherwise good life.^{Footnote 40} On such views, alienation occurs when someone is not ‘truly’ or ‘authentically’ themselves, based on some substantive conception of the good or authentic life, is impeded in the ethical ideal of self-realisation or self-authorship, or stands in no meaningful relationship to oneself or others. Often such views are metaphysical (in particular, ontological) in that they rely on some understanding of human essence.

Some of Marx’ writing suggests a commitment to such a teleological (in his case, ontologising) conception.^{Footnote 41} For example, when he writes that ‘labour belongs to man’s essence’, that ‘he confirms himself in his work’, and that ‘alienated labour alienates man from his vital activity’,^{Footnote 42} then these passages seem to imply a certain ethical conception of the good life or a metaphysical conception of human nature.^{Footnote 43}

As it was the case for ethical-teleological understandings of commodification, here too, with regard to ethical-teleological notions of alienation, in pluralist societies like our own, where people adhere to divergent worldviews and pursue diverse ways of life, if we ended up taking one such conception as the basis for public policies and for generally applicable and enforceable laws – whether public or private laws –, then, insofar, citizens rejecting that particular conception might rightly understand themselves as being dominated by those policies and laws, which would constitute an injustice towards them.^{Footnote 44} In addition – and that is the point to be added here –, they risk becoming alienated by such laws which, for good reason, they fail to consider reasonably justifiable (legal–political or public alienation).^{Footnote 45}

C. Alienating commodification as a moral wrong: a Kantian–Marxian view

By contrast, on a deontological view alienation must be understood as a moral wrong (which may be relational or social or both). On this view, the point is not that alienated persons and groups live miserable lives (although this will often be the case) but that they have a right for individuals (in the case of relational alienation) or society (in the case of social alienation), to avoid, and as the case may be, stop causing the alienation. In the latter case of social alienation, this may require (structural) institutional change, which may include private law reform as well.

The core idea here is to understand alienation in terms of the categorical imperative, as formulated by Immanuel Kant in the formula of humanity.^{Footnote 46} On this view, alienation, as a moral wrong, results from instrumentalisation. This may be the instrumentalisation either of others or of oneself. When one treats another person or oneself as a mere means, and not also as an end, this may result, respectively, in relational, social, and self-alienation. And whenever one instrumentalises another person or oneself then insofar one does not respect them as an autonomous person. In other words, on this Kantian view alienation should be understood as a particular form of heteronomy.^{Footnote 47} Or to be more precise, making a more limited claim, alienation through instrumentalisation constitutes a core case of alienation.^{Footnote 48}

The treatment of a person as a mere means to one’s own ends, that is the failure to respect them as an end in themselves, is not an empirical phenomenon, an observable fact. Rather, this kind of alienation occurs in the normative space of reasons. It happens when one’s reasons are ignored, indeed when a person is denied standing as a normative authority, when they are not properly considered as a person with moral agency, as a reason-giving authority. This is why Rainer Forst refers to this kind of alienation as ‘noumenal alienation’.^{Footnote 49} As he puts it, ‘noumenal alienation results from a lack of being recognized or a lack of recognizing yourself as an agent of justification equal to others, as having an equal right to justification. In this sense, alienation violates the dignity of humans as moral and political lawgivers.’^{Footnote 50}

While, as said, some of Marx’s writing on alienated work suggests a teleological–ethical conception of alienation, various other passages clearly express a deontological view, for example when he writes that ‘alienated labour degrades man’s own free activity to a means’.^{Footnote 51} Through alienating, objectified, indeed commodified labour, workers become mere means to the end of their own physical survival and to the capitalists’ end of maximising their profits. On this view, what is wrong with the commodification of labour, that is the objectification and externalisation of one’s labour through market exchange as an object of property, is the denial of the human dignity of the worker. And as Kant put it, while things only have a market price, persons have dignity.^{Footnote 52} Therefore, when a person’s work is reduced to a commodity then that person’s inalienable right to dignity is denied. As Rainer Forst submits, ‘the Kantian moral conception of the equal dignity and inalienable authority of persons is not just obviously at work [in the Economic and Philosophical Manuscripts], but also every form of alienation is noumenal because in every one of these forms humans misrecognise each other and themselves as part of a structured social process of reified agents producing and exchanging ‘things’.’^{Footnote 53}

There is, thus, an important cognitive aspect to the deontological understanding of alienation. Alienation occurs through cognition – miscognition and misrecognition to be more precise. A person is denied the equal standing as a moral authority and the human dignity they have. In other words, contributing to someone’s alienation does not only constitute a moral wrong but also a cognitive mistake. Understanding another person (or oneself) as a mere means to the ends of others is a mistake about that person’s – indeed any human being’s – moral status, their unalienable moral worth.^{Footnote 54}

In the following, I will rely on such a Kantian-Marxian deontological reading of alienation. The focus here will be on alienation through European private law, that is on the moral-political violation of the dignity of European private law’s addressees as political co-lawgivers. Obviously, a Kantian-Marxian conception of alienating commodification does not furnish any immediate clearcut answers in concrete cases (in spite of it providing a categorical standard). However, it does afford clear guidance as to which kinds of reasons to consider (moral agency, human dignity, self-determination, non-instrumentalisation, non-domination) and which ones not (self-authorship, authentic self-realisation, living a life true to one’s values, traditions or culture) in normative thinking about the private law of commodification. On the view defended here, alienating commodification constitutes an injustice. Put differently, the right to justification entails a right to non-commodification – or to be more precise, a right against alienating commodification.

D. Overcoming alienation: the dialectics of private and public autonomy

Alienation may be personal (alienation from specific individuals, including oneself), social (alienation from the social group or society one belongs to), political (alienation from one’s political community) and legal (alienation from one’s legal order).

On the neo-Kantian view defended here, these are closely connected to personal, social, political, and legal heteronomy, respectively. This means, in turn, that overcoming alienation means, respectively, (re)gaining personal, social, political, and legal autonomy.

If, in addition, we understand personal (or private) autonomy and political–legal (or public) autonomy as co-original, standing in a dialectic relationship to each other (which means that they mutually presuppose each other, as two sides of the same coin – one cannot be had without the other),^{Footnote 55} then it follows: 1) that personal (private) and political–legal (public) alienation also stand in a (in this case, negative) dialectic relation to each other, and that 2) overcoming alienation requires a (positive) dialectic between private and public autonomy, and between their respective legal–political forms, ie subjective rights and democracy.

As Cristina Lafont has pointed out, political–legal (or: public) alienation may occur whenever there exists a structural disconnect between the interests, reasons and ideas of citizens and the legal order that claims application to them.^{Footnote 56} In such cases, citizens may become estranged from these laws and from their political community, because as addressees of these laws they are unable to understand themselves as their co-authors. Such ‘political alienation’, as she calls it, and what I would call legal–political alienation (because this better captures the connection between the co-author and addressee perspectives on non-alienation under democratic law) may result from what she calls ‘democratic shortcuts’, which are instances where lawmakers try to bypass the public sphere, which is the forum for public opinion and will formation, to enact laws that citizens cannot recognise as justifiable with plausible reasons. As a result, citizens may become estranged from these laws, from the law-making process, and indeed from the political community in general.

Lafont distinguishes two different types or aspects of political alienation, which she calls, respectively, the identitarian and the justice aspects of political alienation. With regard to the former, she affirms that in pluralist societies identarian alienation cannot be avoided. Nor do democratic citizens have a right to see all their interests, reasons, and ideas expressed in the laws that apply to them. However, she underlines, the situation is different when laws that citizens are subject to are structurally disconnected from their considered judgement about justice. And democratic participation in law-making is essential to prevent an alienating disconnect between the laws to which citizens are subject and their collective considered judgement about justice. Only when citizens can take ownership of the laws that apply to them can the alienating experience be prevented of regarding these as made by others, whose political decisions they are expected to blindly defer to. It will be clear that Lafont’s distinction between the identarian and justice aspects (or types) of political alienation aligns with the distinction between the ethical–teleological and moral–deontological understandings of commodification and alienation discussed above.

Another well-known source of legal–political (or public) alienation in this Kantian sense is the instrumental nature of EU law,^{Footnote 57} in particular internal market instrumentalism.^{Footnote 58} As Gareth Davies points out, the over-instrumentalisation of EU law, following from the narrow functional competences in the treaties, alienates the European public.^{Footnote 59} At the same time, the instrumental nature of EU law, and in particular the internal market instrumentality of European private law, also risks engendering relational (or private) alienation. It is important to be precise here and not to overstate the point. The problem is not that eg contractual relationships, or contracting parties, or EU consumer contract law should never be instrumentalised. National private laws too have legitimately done so for more than a century.^{Footnote 60} Contrary to what is sometimes claimed,^{Footnote 61} modern private law is legitimately informed by other considerations than formal corrective justice.^{Footnote 62} Private law does not go ultra vires merely because it refuses to limit itself to the implementation of morality. The deontological point is rather that the right (interpersonal justice, distributive justice, horizontal human rights) should always retain priority over the good (eg welfare, be it general welfare or specifically consumer welfare),^{Footnote 63} and – most relevant here – that the use of the contractual relationship should not be merely instrumental.^{Footnote 64} And indeed the familiar protection of various categories of weaker contracting parties (employees, tenants, consumers) typically can be justified not only with social justice but also with interpersonal justice reasons (as long as these are understood in a thoroughly substantive, or ‘materialised’, sense). Quite similarly, where EU consumer contract law is justifiable also in terms of substantive interpersonal justice, as is often the case and as tends to be even the Court of Justice’s principal reading,^{Footnote 65} then insofar the instrumentalisation by EU consumer contract law of contracting parties and their relationships is not problematic. Having said that, it is not enough from the point of view of Kantian–Marxian non-alienation that EU consumer law merely could be justified also in terms of substantive interpersonal justice. The right to justification requires that – and alienation can only be prevented when – adequate – in this case, non-alienating, hence non-instrumental, – justifications are in fact forthcoming. This is indeed what the Court of Justice has been ensuring in its case law on EU consumer contract law at least since Mostaza Claro.^{Footnote 66} Yet, there is yet one further requirement, crucial in order to prevent political alienation, as we saw. That is: the addressees of EU consumer contract law, and of its official justificatory discourses, must be able to regard themselves also as its co-authors. In this latter, democratic respect judicial justification by the Court of Justice of the European Union (CJEU) remains second best at best.^{Footnote 67}

In such cases (and others), persons come to have subjective rights and obligations, which ensure and define their private autonomy (individual self-determination), which they cannot meaningfully (that is: more than nominally) understand as grounded in their public autonomy (collective self-determination).

Given that, as said, alienation should be understood as a denial of one’s moral–political standing as an autonomous agent, the only way to overcome it is through a positive dialectic of private and public autonomy.^{Footnote 68} By the latter I mean: the determination of private autonomy and its limits (individual self-determination), as expressed in private law rights and obligations, through the exercise of public autonomy (collective self-determination), both to be understood in a thoroughly substantive (as opposed to merely formal) sense. Only then will the addressees of legal norms be able to understand themselves as their co-authors, which is a precondition for a private and political life without alienation.^{Footnote 69} Elsewhere, I have argued that various forms of participatory democracy could contribute to strengthening collective self-determination, and hence, overcoming public alienation through European private law.^{Footnote 70}

A. Personal data as consideration

Perhaps the most widely discussed instance of EU private law commodification is the recognition in 2019 of personal data as currency in consumer contracts for digital content and digital services.^{Footnote 71} The explicit denial by the European legislator will only further alienate European citizens. See the preliminary recital:^{Footnote 72}

The claim that ‘such business models are used in different forms in a considerable part of the market’ naturalises markets. Instead, it is a crucial role of the directive itself that it co-constitutes the market – in this case a market for personal data. Without legal recognition of personal data as currency or consideration, such contracts would be void and the relevant ‘considerable part of the market’ would not exist (or at best would be a black market, which in this case, however, would not seem a viable one). And the recognition that ‘the protection of personal data is a fundamental right and that therefore personal data cannot be considered as a commodity’ is in flat contradiction with the explicit legal recognition by the directive of personal data as a valid counter-performance, ie of its consideration as a commodity. Indeed, the well-known phrase that ‘when something online is free, you’re not the customer, you’re the product’ catches the commodification of the person much better. Further alienation may follow from the reference in the directive to ‘the consumer’s personal data’. This would be personal data that someone has in their capacity as a consumer. However, that capacity seems hardly personal, indeed the opposite: from the perspective of sellers and service providers any consumer is as good as any other, as long as they are willing to pay in whichever way is most profitable.

The stated rationale, ie that the directive ‘should ensure that consumers are, in the context of such business models, entitled to contractual remedies’, does, of course, get things backward. These business models are neither a natural fact nor inevitable. And while it is undeniable that they yield massive profits for businesses, and that consumers will obtain the digital services and content they want without having to pay any money, this comes at the price of the commodification of European citizens’ personal data in the guise of consumer protection. This seems a striking case of alienating EPL-commodification. And any ‘consent’ given by the consumer, even when legally valid,^{Footnote 73} does not change this, not only because private autonomy can never replace public autonomy, but also – and most to the point here – because alienated consent expresses alienation rather than making up for it.

Interestingly, in a recent ‘consumer questionnaire’, where the Commission inquired whether consumers experienced certain specific problems online, one possible problem suggested by the Commission was: ‘My personal data was misused (or used unfairly) to personalise commercial offers (eg the company seemed to use information about my specific weaknesses and vulnerabilities when showing me personalised content).’^{Footnote 74} The idea that personal data can be misused (or used unfairly) in this way suggests a possible instance of what one might call ‘miscommodification’, which might give rise eventually, ie in the context of the ‘fitness’ review (on which below), to partial decommodification, leading to a mixed regime of regulated or ‘incomplete’ commodification.

B. Vulnerable consumers of essential services

When public utilities were privatised into ‘market sectors’, such as telecommunications, energy, and transport, that were deemed in need of ‘liberalisation’, this turned citizens, with a right to a public service (not for profit), into consumers of private services (for profit), with a right to consumer protection. Moreover, these services, which were formerly understood to be essentially public services were now seen as essential private services, with a need to protect the ‘vulnerable consumer’ thereof against the powerful and ruthlessly profit-seeking market players on whom they had now come to depend.^{Footnote 75}

It is not difficult to see how the commodification of large sections of the public service into private services that citizens now had to buy as consumer on the market, coupled with the protection of vulnerable consumers of essential services, resulting in the legal transformation of citizens, who are owed equal concern and respect, into vulnerable consumers, who are granted consumer rights and remedies, was bound to have significant alienating effects on persons subject to the European legal order.^{Footnote 76} The privatisation of public services, the marketisation of society, the consumerisation of citizenship, and the vulnerabilisation of equal respect, are different aspects of alienating commodification through European private law.

C. Consumer resilience

The ‘New consumer agenda: strengthening consumer resilience for sustainable recovery’, that the European Commission published in 2020, expressed a very specific conception of the person, ie as a ‘resilient consumer’.^{Footnote 77} This understanding of persons by the European executive and co-legislator may be rightly experienced by European citizens as politically alienating in various respects.^{Footnote 78}

First, citizens may not see or even wish to see themselves as resilient. They may well understand themselves as fragile, helpless, or inflexible. They may or may not be pleased with how they are, but at least some European citizens – and perhaps many – may experience it as profoundly alienating for the European Commission to have an agenda to strengthen their resilience. Indeed, they may well think – and with good reason – that it is none of the EU’s business whether or not they are – or wish to be – a resilient person.

Secondly, it may be even more disorienting, and indeed alienating, for European citizens to learn that the Commission aims to strengthen their ‘resilience’ and to ‘empower’ them in their specific capacity as consumers – or even more specifically, as ‘energy consumers’ (which means, as persons trying to keep their homes warm).^{Footnote 79}

Finally, throughout the same document (as well as in others)^{Footnote 80} the Commission also refers to the resilience of the European Union, sometimes in the same sentence.^{Footnote 81} This suggest that the EU, in typical welfarist (ie utilitarian) vein, fails to take seriously the distinction between persons.^{Footnote 82} This is bound to alienate European citizens and others subject to the EU’s laws and policies. Here, European citizens (and, wider, persons affected by EU laws and policies), risk becoming, as ‘resilient consumers’, mere means to the ends of the EU and its resilience, which they may well experience as alienating for the double reason that they are treated as means rather than as ends in themselves, and as fungible instead of unique.

It is true that in this case the alienating effect of European private law does not derive directly from commodification. However, arguably, here the instrumentalisation of persons by EU law risks reaching a point where consumer resilience obtains certain properties of a commodity (the resilient consumer as product) to be traded in the internal market with a view to the EU’s economic recovery. If something is a mere means, it is indifferent, replaceable, that is, fungible.^{Footnote 83} And treating a person as a mere means to an end (in this case, a collective end) means turning them from a person into a fungible thing, a commodity.

D. Ethical consumerism and the privatisation of social justice

EU law increasingly understands citizens as willing to pursue sustainability goals in their capacity of consumers. In other words, sustainability goals are commodified, turned into something consumers buy on the market. Such ethical consumerism may be alienating in at least two respects.

First, it is not clear that citizens should understand their sustainability concerns as concerns they have as consumers, rather than as political concerns they do have but which are in direct conflict with their interests as consumers (ie more products to choose from and lower prices).^{Footnote 84} Indeed, arguably these concerns are best understood as justice concerns, which should have priority over consumer interests, and which are not even commensurable with them. It is only in a welfarist conception where principles, values, and other human motivations are reduced to so-called ‘consumer preferences’, that these various concerns become commensurable, through money (‘willingness to pay’ on the market), ie as a commodity. However, arguably the concept of consumer preferences is misleading exactly in this respect: it suggests commensurability – and hence the possibility of trade-offs – between concerns that ought not to be traded off against one another, because of the categorical moral demand to understand them as incommensurable. Human rights and climate justice should not be traded off against consumer surplus. It makes an important difference whether we understand sustainable consumption as a matter of empirical preferences (for a sustainable lifestyle), ethical values and group identity (adherence to the value of sustainability, identification with a sustainable form of life), or universal moral principles (a moral duty – and a corresponding right – not to harm workers, future generations, or nature as such). And the misrecognition of moral duties as consumer preferences alienates moral agents.^{Footnote 85}

Secondly, even when EU consumer law facilitates virtuous consumers in their attempts at sustainable consumption, they are faced with a massive collective action problem. And as Aditi Bagchi has recently argued, when it is unlikely that others will behave virtuously it cannot be expected from an individual to do so either.^{Footnote 86} Defending what she calls a ‘no-martyr principle,’ she argues that we should ‘use mandatory rules issued by the state rather than moral exhortation of individuals to solve moral collective action problems’. She offers the example of corporate social responsibility, suggesting that ‘we might expend less energy exhorting corporations to behave well and invest political resources in mandatory rules’. While conscious of the fact that the corporate social responsibility movement has been a response to existing political obstacles to public law reform, she argues, nevertheless, and plausibly in my view,^{Footnote 87} that ‘nothing short of public law is likely to be successful.’^{Footnote 88} Similarly, I would add, legal facilitation by private law, or even private law nudges (‘choice architecture’, where the socially desirable option is presented as the default) are not the right response to such moral collective action problems.^{Footnote 89} What is needed is hard regulation, which altogether removes the socially undesirable options from the consumer’s menu,^{Footnote 90} or to make the sustainable one become non-optional (eg a mandatory consumer right to repair with a view to strengthening the circular economy).^{Footnote 91} Given that we are talking here about fundamental rights (to safe and dignified working conditions) and distributive justice (the distribution of the costs of combating climate change, between present and future generations, between the global north and the global south, and between rich and poor consumers) such regulation (when likely effective and proportionate), it seems, would easily meet the threshold of reasonable non-rejectability which is a (neo-Kantian) precondition for non-dominating law.^{Footnote 92} The point most relevant here, however, is that private law rules grounded in a martyr principle are politically alienating. They alienate European citizens and other EPL-addressees because they present as a consumer option what is in fact a moral-political demand. The (neoliberal) privatisation of sustainability and social justice responsibilities through EU consumer law is another instance of alienating commodification.

E. Consumer law’s colour blindness

EU consumer law’s blindness towards specific lived experiences, including consumer experiences, of persons of colour and of persons belonging to ethnic minorities is bound to be experienced as alienating by many addressees of European private law. A colour-blind EU consumer law de facto normalises and valorises the experience of the ethnic and racial majority.^{Footnote 93} Black alienation,^{Footnote 94} intersectional alienation,^{Footnote 95} and more generally the alienation of oppressed and marginalised subjects, have been documented for decades. Overcoming alienation through European private law must, therefore, prominently include overcoming the whiteness of EU consumer law.^{Footnote 96}