Introduction

It is difficult for lawyers to see consumers outside the lens of protection. Considering the power imbalances that exist in the market, consumers do deserve structural protection vis-à-vis their stronger counterparts. This protection not only addresses social concerns, but also satisfies the economic concerns of legislators. In the EU, the harmonisation of consumer protection has served the goal of EU market integration, of which consumers are seen as (indirect) beneficiaries. This has led to a dual characterisation of EU consumers: as subjects in need of protection, and also with the potential to be market actors and reap its benefits (Grochowski, 2020). 

In comparison, the image of consumers as societal actors, bearing non-economic interests and driven by non-individualistic motivations and values, has received less prominence within EU legislation. But it has not been entirely neglected. For instance, EU food information standards recognise that consumer choices are also influenced by environmental, social and ethical considerations, and thus provide that consumers’ right to information extends to these aspects (Case C-363/18). However, these considerations have largely remained in the realm of protection, and have not translated into responsibilities for consumers or restrictions on their choices.

In the face of the societal challenge regarding sustainability, and the importance of rethinking the way and pace at which we consume, the question of whether, to what extent, and how consumers could share responsibility for the pursuit of sustainability is a necessary one (Micklitz, 2019). However, it remains difficult to conceptualise consumers through the lens of sustainability, especially if we consider that—to really achieve this—it might be necessary to emancipate them from their ‘natural’ habitat: the market. 

During the project’s kick-off event, these issues were discussed. It was emphasized that any expedient of consumer responsibility might run the risk of becoming a ‘responsibilisation’ (Chater & Loewenstein, 2022: 36). More precisely, an increased focus on individual responsibility could divert the attention of legislators away from more systemic policies which actually contribute to structuring consumer (un)sustainable behaviour. Furthermore, increasing consumer individual responsibility for sustainability with an ‘empowerment rhetoric’  (e.g. giving consumers more information to purchase more sustainable products) may lead to the creation of new market requirements to which the consumer would be merely demanded to adapt to (Somek, 2013), without actually internalising any sustainability goals.

The aim of my PhD research is to shed light onto these difficulties surrounding consumer responsibility, to understand what role is fair to demand consumers to play – alongside governments and the private sector – as market and societal actors in pursuing the goal of sustainability, and whether consumer law should be a tool encouraging consumers to take on this ‘expanding’ role.

In the remainder of this blog post, I will outline my preliminary ideas for the research and, in particular, two elements that I find to be building blocks for my project: the notion of consumer-citizen, and the concept of law as a tool.

The notion of consumer-citizen

As a starting point for the research, I have chosen the perspective of the consumer-citizen developed in European consumer law scholarship (Mak & Terryn, 2020; Cseres, 2019). The consumer is understood as a citizen who, in deference to her civic responsibilities, would agree to give up part of her consumer protection if it could hinder the protection of other individuals and public goods (e.g. the environment).

The EU legislator has often addressed European consumers in their capacity as citizens in strategic policy documents, raising scholarly concerns over the fungible use of ‘consumers’ and ‘citizens’ (Hesselink, 2014). Besides, it may be contended that the responsibility to internalize the externalities of private consumption may actually stem from our role as individuals in a society, rather than our role of citizens (Dagan, 2022).

In parallel, the notion of consumer-citizen could also appear problematic as it has often been used to capture something which is diametrically opposite to the idea of an intertwined role of consumers and citizens. The consumer-citizen has been described as a citizen who ‘collapses’ into a mere market-citizen, whose public autonomy and citizenship are reduced to private consumption and political consumerism at best (Baringhorst, 2015).

Taken together, the contradictions arising from these different dimensions of consumer-citizen offer unique food for thought. The aim of my research is to understand them to see whether this notion can be helpful in representing the identity of a consumer who is both an actor in society and in the market, and who is therefore the bearer of multifaceted interests that deserve intertwined protection. 

(Consumer) law as a tool to encourage consumers to pursue sustainability

A key question for my project is whether consumer law could be used (and if so, whether it should be used) as a tool to engage consumers towards more sustainable behaviours. So far, consumer law has not performed this function and may have unwittingly produced the opposite (Terryn & Van Gool, 2021). Nevertheless, recent proposals undertaken in the aftermath of the EU Green Deal appear inspired by the goal of transforming the market into a place where consumers can behave more sustainably.

As Kate O’Reilly (2023) points out in her analysis of the EU Commission’s consumer empowerment strategy for the green transition, it is to be seen whether these new proposals will succeed in changing consumer behaviour. Will the introduction of a ‘right of repair’ alone succeed in making consumers dispose of their products less prematurely (Bartl, 2023)? O’Reilly stresses that consumer law cannot in any case deterministically guide consumer behaviour, unless more attention is paid to the ‘subjective’ dimension of consumer (dis)empowerment (e.g. consumers’ internalised narratives). I aim to understand these issues – which cut across law and social sciences – also through empirical methods, to grasp whether consumer law may indeed have a transformative effect on consumer behaviour.

As said, these elements are the starting points for the research, and have hopefully given an idea of what are my next steps to come. ‘I put some new shoes on and suddenly everything is right’, Paolo Nutini sings. Sometimes I am torn as to whether new shoes of this kind, fitting the consumer and enhancing the pursuit of sustainability, exist – but there are definitely good reasons to keep on searching.