In Search of the Theory of Harm in EU Consumer Law : Lessons from the Consumer Fitness Check

Recently, EU Consumer law has undergone a ‘Fitness Check' (or REFIT). We thought that checking the fitness for purpose of a body of law would involve revisiting its purpose. This is why we expected to find in the rich REFIT documentation (over 4000 pages of studies and Commission documents) an explicit discourse on the goals of consumer law. Our aim was to connect this discourse to two lines of scholarship: a doctrinal line pointing out that EU consumer law lacks a clear direction and that, to the extent it does have one, it is too strongly geared towards market integration to the detriment of protection of the weakest, and a more economic line seeking to formulate a theory of harm that could underpin the enforcement of consumer law, by analogy with the practice in competition law. We agree that a clearer direction and a stronger conceptualisation of what harms the law seeks to protect consumers against would improve European consumer law. This paper defines a ‘theory of harm', illustrates what a theory of harm for consumer law could look like and analyses the REFIT documentation in search for elements of such a theory. Our findings are largely disappointing. We looked for something that is not there. The REFIT's tour de force is to check fitness for purpose without discussing purpose. It does so by adopting a circular approach and defining consumer harm as instances of under-enforcement of the law. This presupposes that all possible harms are already accounted for in the law and only occur when the law is not properly enforced. We uncover an irony instead of a theory of harm. What the REFIT does delineate is a normative space in which to develop a theory of harm for the future. It consists of a virtuous triangle of empowerment, trust and a well-functioning internal market. The REFIT also suggests that an economic-based theory of harm would need to interact with several legal elements. Consumer weakness, empowerment and legitimate expectations constitute ingredients for an economically grounded, behaviourally sensible and legally workable theory of harm