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The Consumer Rights Act 2015 – a bastion of European consumer rights?

The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer rights?


INTRODUCTION
The Consumer Rights Act 2015 (CRA) came into force on 1 October 2015. 2 It has been described by consumer organisation Which? as 'the biggest shake up in consumer rights law in a generation'. 3 Its aims are ambitious: to simplify, strengthen and modernise UK consumer law, consolidating in one place fundamental consumer rights covering contracts for goods, services, digital content and the law relating to unfair terms in consumer contracts. 4 These goals are impressive and respond to genuine consumer needs. Prior to the Act, UK consumer law was unnecessarily complex, fragmented and, in places, unclear; for example, where the law had not kept up with technological change, lacked precision or was couched in legalistic language. 5 A key reason for this complexity has been the introduction into UK law over the past 30 years of new consumer rights deriving from European directives. 6 Such measures have, in the main, been transposed into UK law using the 'copy out' approach, by which the draftsman, whenever possible, reproduces the wording of the directive usually within secondary legislation or (more rarely) by amending existing statutory provisions. 7 Examples of the difficulties that arise in integrating these new provisions into UK law may be found in relation to the Consumer Sales Directive 99/44/EC (CSD) 8 and the Unfair Terms Directive 93/13/EEC (UTD). 9 These important directives introduced changes to the sale of goods, supply of services and general contracting regime, but their transposition into UK law proved to be less than smooth. 10 Miller describes the transposition of the CSD as bringing into UK law 'a tortuous web of legal provisions, impenetrable to those unversed in the particular area of sales law', leaving UK law 'a disjointed, often incoherent, amalgam of 20th century consumer protection provisions grafted onto commercially rooted, and orientated rules'. 11 In particular, the decision to introduce a range of new consumer-friendly remedies in addition to those already existing in UK law left the consumer facing a confusing overlap of remedies. 12 This situation was further aggravated by the fact that the CSD is a minimum-harmonisation directive; that is, it permits 3. See http://www.which.co.uk/consumer-rights/regulation/consumer-rights-act (accessed 16 September 2016). 4. The Act further introduces easier routes for consumers and small and medium-sized enterprises ('SMEs') to challenge anti-competitive behaviour through the Competition Appeal Tribunal ('CAT'). These measures will not be dealt with in this paper, although it should be noted that UK competition law is now heavily influenced by EU law: see

The Consumer Rights Act 2015 79
Member States to maintain or introduce more stringent protective measures if consistent with Treaty provisions. 13 While this ensures a minimum standard of protection across EU States, it inevitably leads to fragmentation, giving rise to diversity between the national laws of Member States, 14 and complexity at a local level where EU law is introduced alongside existing national provisions without any attempt to integrate the provisions into national law.
The transposition of the CSD received criticism from the Davidson Review in 2006, 15 which examined the introduction of European directives into domestic law and concluded that UK law on the sale of goods was unnecessarily complex. 16 Further criticisms were raised in relation to the overlapping regimes dealing with unfair terms. Here again, existing legislation (the Unfair Contract Terms Act 1977) was merely supplemented by a set of Regulations implementing the 1993 UTD (again a minimum-harmonisation directive). 17 The Law Commissions in their report of February 2005 recommended that a unified regime was needed to reduce uncertainty and confusion in this area for the benefit of consumers, businesses and enforcement authorities alike. 18 In introducing the CRA, the UK government expressly acknowledged the difficulties that had arisen in implementing the CSD and the UTD alongside pre-existing UK legislation. 19 The Act thus replaces earlier legislation that had implemented these EU Directives, responding to the concerns raised above. 20   unfortunate similarity in title, with the exception of certain parts of Arts 5, 6 18, 20 and 23 of the CRD, which are implemented in Pt 1. 22 The provisions of the CRDwhich deal primarily with distance and off-premises contractsmay be found in earlier secondary legislation: the Consumer Rights (Payment Surcharges) Regulations 2012 23 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. 24 Nevertheless, the government expressly stated that: 'In developing proposals for the Consumer Rights Act 2015, the Government has taken into account the definitions and measures contained within the CRD and, as far as appropriate, has made the Act consistent with the CRD, with the intention of achieving overall a simple, coherent framework of consumer legislation.' 25 This paper will focus on Pts 1 and 2 of the Act, preceded by an initial examination of the key concepts of 'trader' and 'consumer' under the Act. It will examine the extent to which these Parts (which introduce new measures concerning consumer contracts for goods, digital content and services, and unfair terms) are likely to succeed in realising the government's stated goal of resolving the inconsistencies and overlaps between domestic and EU law. It will also consider the implications of 'Brexit' following the result of the June 2016 referendum. Does the 2015 Act present us with a valuable consolidation of EU and UK consumer law, which will outlast the UK leaving the EU? To what extent, regardless of Brexit, have EU rights been absorbed into a distinctive national framework of consumer rights?

BRINGING EU LAW INTO THE FOLD I: DEFINING 'TRADER' AND 'CONSUMER' UNDER S 2 OF THE CONSUMER RIGHTS ACT 2015
One of the policy objectives of the Act is to align, as far as possible, the definitions of certain key terms across the Act and other consumer law. Key definitions are set out in s 2. 26 These include the terms 'trader', 'consumer', 'business', 'goods' and 'digital content'. 27 Interestingly, 'service' is not definedthe reason given that it was not defined in the Supply of Goods and Services Act 1982. 28 These definitions apply to both Pts 1 and 2 of the Act. 29 Trader Section 2(2) defines 'trader' as: a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another 27. Note that s 2(8) sets out the definition of 'goods', which does derive from Art 2(3) of the CRD. The definition of digital content in s 2(9) is the same as the definition in the CRD (Art 2 (11)). See also s 5, which defines 'sales contracts', which is consistent with the category of 'sales contract' under the CRD. 28. Explanatory Notes to Act, at [34]. One might query whether this is an adequate explanation. 29. See s 76 CRA (interpretation of Pt 2), notably s 76(2). person acting in the trader's name or on the trader's behalf. 30 This definition replaces previous terminology, including the 'seller in the course of business' (Sale of Goods Act 1979) or simply the 'business' (Unfair Contract Terms Act 1977, s 14) with a composite term 'trader'. In opting for a definition which reflects that found at Art 2 (2) of the CRD, 31 the drafters of the Act have opted for simplicity but also an approach consistent with a (maximum-harmonisation) Directive. It also reflects the general approach found in EU consumer directivesconsider, for example, the definition of 'seller or supplier' found at Art 2(c) of the UTDany natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately ownedand 'seller' at Art 1.2(c) of the CSDany natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession. This point here is one of clarity in a statute covering a range of different types of contracts with the added benefit of providing some degree of consistency with the EU consumer framework.

Consumer
In a piece of consumer legislation, the definition of the beneficiary of the rights provided -'the consumer'is obviously of vital importance. However, the 1988 decision of R & B Customs Brokers Co Ltd v United Dominions Trust Ltd, 32 where the Court of Appeal had been prepared to accept that a company could be deemed to be dealing as a consumer for the sake of s 12 of the Unfair Contract Terms Act 1977, renders this definition potentially controversial. Would this case survive under the new legislation? The answer is no. Section 2(3) defines 'consumer' as: 'an individual 33 acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession'. This may be compared with the CRD definition (Art 2(1)): '"consumer" means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession'. Recital 17, CRD adds, however, that in the case of dual-purpose contracts, where the contract is concluded for purposes partly within and partly outside the person's trade and the trade purpose is so limited as 'not to be predominant in the overall context of the contract', that person should also be considered as a consumer. While it may be queried whether any material difference exists between 'wholly or mainly outside' or 'not to be predominant in the overall context of the contract', it is clear that both definitions are wider than those used in the CSD 34 and 30. Section 2(7) states that 'business' includes the activities of any government department or local or public authority. 31. Article 2(2) CRD: '"trader" means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive'.  the UTD. 35 The definition does also reflect the wording adopted by the Regulations implementing the CRD, albeit in the context (primarily) of measures relating to off-premises and distance contracts. 36 The UK government has therefore chosen to rely on a wider definition of consumer than that found in the CSD and UTD. This is permissible in that these are minimumharmonisation measures (unlike the CRD). It will, however, exclude small businesses, such as those found in the R & B Custom Brokers case, in that they are not 'natural' persons. Concerns remain, however. It is submitted that despite excluding companies from the consumer definition, the dividing line between B2C and business to business (B2B) contracts will remain a point of contention. Only 'living' consumers are covered by the CRA and yet it is easy to envisage demarcation issues involving, for example, whether a sole trader (a 'natural' person) who purchases a laptop is acting 'mainly' outside her trade or business in relation to this particular purchase. This suggests that this definition is far from watertight in guaranteeing clarity. It also signifies that we remain far from any commonly agreed European definition of consumer. Divergence as to this key definition will continue to exist across Member States.
In introducing common definitions for both sales and unfair terms law, the aim of the government is to render these areas of law more coherent. Riefa argues that this paves the way for consumer law to be further consolidated, while evolving in a more orderly fashion. 37 It remains to be seen if this optimistic view is correct.

BRINGING EU LAW INTO THE FOLD II: THE CONSUMER SALES DIRECTIVE 99/44/EC
Part 1 of the Act deals with agreements between a trader and a consumer for the trader to supply goods, digital content or services, if the agreement is a contract. 38 It replaces earlier legislation that had implemented the CSD, namely the Sale and Supply of Goods to Consumers Regulations 2002, which are now revoked. 39 As indicated above, the Regulations had inserted the provisions of the Directive into existing legislation, such as the Sale of Goods Act 1979 and Supply of Goods and Services Act 1982, without making any real attempt to reconcile them with pre-existing statutory provisions. This led to confusion and disjuncture, and this is what the CRA seeks to rectify. For business to consumer contracts, therefore, the CRA provides a statutory framework for contracts relating to goods, services and digital content. 40 The 1979 and 1982 Acts will still apply to business to business (B2B) and consumer to consumer (C2C) contracts. On paper, therefore, this should render the law easier to understand, and it provides a valuable opportunity to integrate fully EU legislation on B2C contracts into UK law. This section will examine the extent to which these goals have been achieved.
(a) The aims of Pt 1 of the Act Part 1 of the Act deals with a number of matters relating to goods, services and digital content. In terms of goods, it sets out the standards that goods must meet and consolidates and aligns the previously inconsistent remedies available to consumers for goods supplied under different contract types, such as sale, work and materials, conditional sale and hire purchase. It also establishes a time period of 30 days in which consumers can reject substandard goods and be entitled to a full refund and limits the number of repairs or replacements of substandard goods before traders must offer some money back. Limits are also placed on the extent to which traders may reduce the level of refund (where goods are not rejected initially) to take account of the use of the goods that the consumer has had up to that point. For services, Pt 1 introduces a new statutory right whereby if a trader provides information in relation to a service, and the consumer takes this information into account, the service must comply with that information. There are also new statutory remedies, making it clear that consumers can always request these rights and remedies when a trader supplies a service to them. Part 1 further introduces a new category of digital content with tailored quality rights and remedies if these are not met.
The influence of EU Directives runs throughout Pt 1. The CSD is implemented in ss 2, 9, 10, 11, 13, 14, 15, 19, 23, 25, 30, 31, 32 and 59. In addition, cross-references are made to the CRD (as transposed into the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134) in ss 11(4)-(6), 12, 36(3)-(4), 37 and 50(3)-(4)). 41 The question remains: does the Act render the law more coherent and easier to understand? For reasons of space, we will address this question in the light of the provisions relating to statutory rights and remedies relating to contracts for the sale of goods, although it should be remembered that analogous provisions exist for contracts for services and the sale of digital content.
(b) Statutory rights under a goods contract (ss 9-18) Sections 9-11 and 13-15 re-transpose Art 2 of the CSD, regarding conformity of goods with the contract. The original transposition was made in the Sale and Supply of Goods to Consumers Regulations 2002, which amended the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. Not all sections reflect the provisions of the CSD, but the aim is to integrate domestic and EU law to give a unified framework of statutory rights for consumers. This is relatively uncontroversial. The general view has always been that the Directive has had little impact on this area of law in that, prior to the Directive, UK law had already given substantial effect to the principle of 41. The Consumer Contracts (Amendment) Regulations 2015/1629 Regs 4-6 revoke the provisions of the 2013 Regulations in so far as they are replicated in the Act. This does not, as will be seen below, mean that consumers will not have to refer to both the Act and the 2013 Regulations in some cases. Sections 5, 28 and 29 of the CRA also replace a small number of provisions dealing with matters related to the delivery of goods and the passing of risk that had been earlier placed in the 2013 Regulations: see SI 2015/1629, Reg 8 (which repeals Pt 5 of the 2013 Regulations). conformity of goods with the contract; for example, under ss 13-15 of the Sale of Goods Act 1979. 42 The focus of the Directive on consumers will, however, be accentuated by the implementation of these provisions in a consumer rights statute (in contrast to its previous transposition by legislation that covered both consumer and commercial contracts). The very titlethe CRAsuggests an acknowledgement of the importance of a consumer-orientated approach and, more fundamentally, explicit recognition that consumers have rights.
Yet this attempt at clarity unravels somewhat in relation to ss 11(4), 11(5) and 12(2), which contain rather clumsy references to material contained in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 in an attempt to integrate the information requirements within the statutory rights section of the Act. Any information provided by the trader, as required under these Regulations relating to the main characteristics of the goods (s 11) or other pre-contract information (s 12), is deemed part of the contract. The information in question is found, however, in para (a) of Sch 1 or 2 of the 2013 Regulations, not in the Act. If the information regarding the main characteristics is not complied with, the consumer can pursue the remedies for breach set out in s 19 of the Act. 43 This overlap of statutory provisionsdue wholly to the fact that the CRD is not implemented by the CRAlends itself to complexity and belies the aim of consolidation. The reason for implementing the CRD before the CRA was due to the government's decision to comply with the time limit of 13 June 2014 for the application of the CRD in all Member States 44 when it became clear that the Consumer Rights Bill would not be passed in time to meet this deadline. While laudable, in view of the complications that have resulted, it is certainly arguable that missing this deadline might have been justifiable if it had led to the consolidation of three major EU Directives in one piece of legislation. It is not as if the UK has never failed to comply with time limits set by Directives. Article 11 of the CSD required Member States to bring into force the laws necessary to comply with this Directive not later than 1 January 2002 and yet the UK provisions came into force on 31 March 2003. Alternatively, despite earlier implementation, the 2012 and 2013 Regulations could have been replaced by the statute, albeit after a very short life span that might have been deemed to lead to undesirable uncertainty. Neither option was taken up, with the result that consumer legislation is spread over a variety of regulations and statutes. This is unfortunate to say the least.
Without engaging in a detailed dissection of the statutory rights in this section, it can be seen that this is a technical piece of legislation that is unlikely to be immediately accessible to consumers. The sections are long and detailed. Consider, for example, s 18 which re-enacts s 14(1), Sale of Goods Act 1979, providing that unless there is an express term concerning the quality of the goods or the goods' fitness for a particular 43. Note that s 19(5) deals separately with s 12, providing that if the trader is in breach of a term that s 12 requires to be treated as included in the contract, the consumer has the right to recover from the trader the amount of any costs incurred by the consumer as a result of the breach, up to the amount of the price paid or the value of other consideration given for the goods. 44. Article 28(2), CRD. purpose, or a term implied by another enactment, the contract should not be treated as including any such terms, other than those set out in ss 9, 10, 13 and (where it applies) 16. Does such added detail give extra clarity or, in the author's view, render it even more difficult for consumers to understand?
(c) Remedies for breach of the statutory rights under a goods contract: ss 19-24 Remedies are a vital component of granting consumers statutory rights. The CSD seeks to provide a hierarchical order of remedies: defective goods will be repaired or replaced or, where this is not appropriate, consumers may obtain a suitable reduction of the price or have the contract rescinded. 45 Watterson commented that the CSD was likely to have its greatest impact in English law in relation to the rights of consumer buyers of nonconforming goods. 46 We may note an immediate tension between the hierarchical approach of the Directive, which assumes that a consumer's first recourse will be to claim repair or replacement of the faulty goods, and the common law preference simply to let the consumer reject the goods, terminate the contract and/or pursue an award of damages. 47 This tension reflects civilian influence in the drafting of the Directive, having as its central remedy a right to repair and replacement akin to specific performance. 48 Miller argues that 'the remedy of rejection is quite different from that of specific performance (repair and replacement)the latter concerned with continuation of, rather than release from, the contractual obligation and, as such, is out of step with common law contract ideology'. 49 Despite the framework of the CSD, UK law did not relinquish its adherence to the right to reject/damages. Part 5A of the Sale of Goods Act 1979 50 merely inserted 'Additional rights of buyer in consumer cases'. As previously stated, this led to confusion, as consumers were granted supplementary rights that coexisted uneasily with the remedial philosophy of the common law. 51 Nevertheless, the Law Commissions argued strongly that the right to reject should be retained in the UK as a short-term remedy of first instance, in that it provides a simple and easy-to-use remedy that inspires consumer confidence and was strongly supported by the consumer groups they had consulted. 52 45. Article 3, CSD. Article 3(3) provides that 'In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate. '  Under the CRA, ss 19, 23 and 24 re-transpose Art 3 of the CSD. 53 On this basis, s 19(3) provides that: If the goods do not conform to the contract because of a breach of any of the terms described in sections 9, 10, 11, 13 and 14, 54 or if they do not conform to the contract under section 16, the consumer's rights (and the provisions about them and when they are available) are -(a) the short-term right to reject (sections 20 and 22); (b) the right to repair or replacement (section 23); and (c) the right to a price reduction or the final right to reject (sections 20 and 24).
We may note immediately the combination of traditional common law remediesnotably the short-term right to rejectwith those of the CSD. Indeed, ss 19(9)-(11) expressly state that this Chapter does not prevent the consumer from seeking other remedies including damages, specific performance or termination, 55 although s 19(10) warns that consumers cannot recover twice for the same loss. On this basis, in some cases the consumer may exercise the short-term right to reject and receive a refund, but may also claim damages for additional loss caused by the non-conformity of the goods. In other cases, a consumer may prefer to claim damages instead of pursuing one of the statutory remedies. 56 The result, as may be seen, is that while the Act brings together both EU and common law remedies in a structured way, the underlying tension between civilian and common law approaches to breach remains. No attempt is made to resolve this issuethe statute merely sidesteps it once again by placing the remedies side by side. Under the Act, a consumer may thus reject the goods and treat the contract as at an end (ss 20(4)/(5)) or request a repair or replacement if available (s 23) (if unavailable, the consumer is left with the options of the short-term right to reject or to request a reduction in price or the 'final' reject to reject under s 24). This tension is also self-evident from the fact that only ss 19, 23 and 24 implement the CSD, which means, in essence, that the other sections do not. What we do see is s 19 acting as a signpost, indicating the relevant sections that detail these remedies, which are now placed in the same section of the Act. There is also a welcome clarification of the (common law) short-term right to reject; s 22 setting a minimum time period of 30 days in which consumers can reject substandard goods and receive a full refund. 57 Nevertheless, the funda-53. Note that s 23(3) rectifies s 48B(3)(c) of the Sale of Goods Act 1979, which arguably incorrectly implemented the Directive: see Twigg-Flesner et al, above n 47, p 511. 54. Breaches of ss 12 and 15 are dealt with in ss 19(5) and 19(4), respectively. 55. Section 19(12) does provide, however, that it is not open to the consumer to treat the contract as at an end for breach of a term that this Chapter requires to be treated as included in the contract except as provided by subsections (3), (4) and (6). This overrides any common law right to terminate the contract for breach of the terms that these sections require to be treated as included in the contract. 56. Explanatory Notes to Act, at [93]. 57. The one exception (established under subsection (4)) is that for perishable goods that would not be reasonably expected to last longer than 30 days; the period for exercising the short-term right to reject lasts only as long as it would be reasonable to expect those goods to last. In 2009, the Law Commission and the Scottish Law Commission recommended that more certainty was needed over how long the short-term right to reject lasted and recommended that, to give certainty, in normal circumstances, a consumer should have 30 days to return faulty goods and receive a refund: above n 16. This is accepted in the CRA 2015, which also accepts the Commissions' recommendation that to prevent consumers from being locked into a cycle of failed repairs, consumers should be entitled to escape a contract after one failed repair or one failed replacement: s 24(5)(a). mental question of the correct remedial approach towards defective products remains unresolved.
It may be argued, of course, that under a minimum-harmonisation directive such as the CSD, this is unnecessary. While there is truth in this argument, what we see again is a focus on the domestic rather than the European. The CSD provisions are integrated into a national system of remedies in which they play only a part. The resultant legislation is again technical and remains complex in nature, reflecting an approach to drafting in which detail is deemed beneficial to consumers, but at least a signpost exists. While this is not the place for a detailed dissection of the remedies awarded, 58 the measures do highlight the ongoing decision of the UK government to continue its policy of granting consumers a free choice of remedies as permitted under a minimum-harmonisation directive. 59 What we see is a consolidation and restructuring of domestic consumer law with the minimum necessary adherence to EU directives.
Looking at Pt 1 of the Act, while EU law has brought some changes to consumer rights, notably in the context of remedies, the introduction of the CSD has not marked, as Dirk Staudenmayer had hoped, 'an important step towards a future private European law'. 60 Rather, the UK government has concentrated on ensuring that the minimum necessary adjustment to national law is achieved. The measures contained in the CRD are relegated to low-profile secondary legislation and we might further reflect on the wisdom of not including all the provisions of a maximum harmonisation directive focused on consumer rights in a major UK statute dealing with … consumer rights. We might also question to what extent the EU measures, despite the restructuring process, continue to act as what Teubner would term 'legal irritants', 61 fitting uncomfortably with existing measures. Signposting does not signify that the different directions make sense collectively. The fact that the insertion of the CSD into the CRA is described by the government itself as 'adequate' 62 suggests that this is not an overwhelming endorsement of EU consumer policy. What we see is a consolidation of (some) UK consumer law, taking into account EU directives, in a manner that does little to advance the cause of harmonising consumer rights and remedies across the EU. On this basis, it is unlikely that post-Brexit the UK government will engage in the time and effort to excise the provisions of the CSD from UK law, denying consumers rights and remedies with which they are now familiar. This suggests that Part 1 of the Act is likely to continue in its current form. The real focus of Pt 1 is the creation of a domestically coherent framework for UK consumer rights.

BRINGING EU LAW INTO THE FOLD III: THE UNFAIR TERMS IN CONSUMER CONTRACTS DIRECTIVE 93/13/EEC
The influence of EU law seems, however, to be stronger in relation to Pt 2 of the Act. Here, it can be argued that the decision of the UK to leave the EU may have some impact in the future interpretation of the Act. UK lawyers have long been familiar with the fact that 'unfair terms' have their own regime, originating with the transposition of the UTD into the Unfair Terms in Consumer Contracts Regulations 1994, 63 then 1999 (UTCCR). 64 Weatherill has commented that 'Directive 93/13 is properly regarded as the first incursion of EU law into the heartland of national contract law thinking. This makes it a challenge for national private lawyers, expected to adapt to EU law method after decades of perceiving EU law as, more or less, an enterprise engaged in creating new or extended patterns of public law.' 65 EU law, he further notes, is not simply setting a common rule; it is determining what shall be the content, style and technique of that common rule. 66 The UTCCR, however, were forced to coexist somewhat uneasily with overlapping provisions of the Unfair Contract Terms Act 1977 (UCTA) and, as noted in the introduction, commentators were quick to point out the difficulties this raised for consumers trying to navigate two distinct pieces of legislation. The UTCCR also introduced into English law concepts such as 'good faith' and 'significant imbalance', which were far from self-explanatory to a common law audience, 67 and reflected civil law influences relating to good faith in contracting. 68 By simply copying out the Directive into secondary legislation, the UK government made no attempt to bridge this cultural gap or integrate the Directive into domestic lawthe UTCCR merely stood alongside UCTA 1977.
The CRA, Pt 2, responds to calls to merge the UTCCR and UCTA into one consolidated piece of legislation. Suggestions that the government would be willing to contemplate such a step may be traced back to January 2001, when the Law Commission and the Scottish Law Commission first received from the Parliamentary Under Secretary of State for Consumers and Corporate Affairs a request to consider the desirability and feasibility of replacing UCTA 1977 and the UTCCR 1999 with a unified regime. In their report of 2005, the Commissions found that the coexistence of two overlapping schemes gave rise to complexity and inconsistency, and should be replaced by a unified regime for consumers with improved protection for small businesses. 69

The Consumer Rights Act 2015 89
On this basis, the Act revokes the UTCCR 1999 71 and amends UCTA 1977 to remove B2C contracts from its scope. 72 UCTA 1977 will continue to apply to B2B and C2C contracts. In this section, we will examine the nature of the merger between domestic legislation and the provisions of the EU Directive, noting, in particular, the extent to which the (minimum-harmonisation) provisions of the Directive have influenced the shape of the resultant legislation. In this area of law at least, could it be said that UK law does reflect EU consumer norms?
(a) The aim of Pt 2 of the Act The aim of Pt 2 of the Act is straightforward: to consolidate in one place the legislation governing unfair contract terms in relation to consumer contracts, which was previously found in two separate pieces of legislation, removing anomalies and overlapping provisions. Sections 62-69 establish the general rules about fairness. Section 64, in particular, seeks to make it clearer when the price or subject matter of the contract cannot be considered for fairness, introducing the new condition of prominence in addition to that of transparency. Section 63 and Sch 2 also clarify the role of, and extend the indicative list of, terms that may be regarded as unfair (the so-called 'grey list').
The influence of the UTD runs throughout Pt 2. The Directive is implemented in ss 61, 62, 63, 64, 67, 68, 69, 70, 72, 73, 74 and 76 and Schs 2, 3 and 5. 73 It is hard, therefore, to deny the prominence of the Directive in shaping these new provisions of UK law. In this section, we will focus on four key statutory provisions, which have been chosen for the insight they provide into the extent to which EU law has influenced Pt 2 of the Act. We will also consider the influence of recent case-law of the Court of Justice of the European Union (CJEU) on the 1993 Directive. 74 In examining, in turn, s 62 (requirement for contract terms and notices to be fair), s 61 (contracts and notices covered by Pt 2), s 71 (duty of the court to consider fairness of term) and s 64 (exclusion from assessment of fairness), a number of trends may be identified. It is clear, in particular, that a considerable effort has been made to ensure that these provisions are consistent with EU law. Nevertheless, an ongoing focus on domestic concerns may also be identified, arguably to the detriment of ensuring a common European approach to unfair terms. These provisions will be examined below. no question of incorrect transposition. 75 A corresponding test for unfair notices exists: 76 the Act, by covering both contract terms and notices in order to absorb the consumer provisions of the Unfair Contract Terms Act 1977 has impact, therefore, on both the law of contract and tort. An unfair term or consumer notice will not be binding on the consumer, although this does not prevent the consumer from relying on the term or notice if the consumer chooses to do so. 77 Whether a term is fair will be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. 78 We therefore see a test based on that of the 1993 Directive. Although it covers contracts and notices previously governed by UCTA 1977, the language is that of the Directive. This potentially gives rise, however, to difficulties arising from the distinct terminology used in the Directive, as discussed above. If a common law court is likely to find 'good faith' and 'significant imbalance' difficult to interpret, is the Act recreating these difficulties? The Law Commissions in 2005 argued that the UTD should be rewritten in a clear way, using terminology familiar to a UK audience. The draft Bill that accompanied the Report suggested a number of changes to the Directive's wording that would make it easier to understand. As late as 2012, in their Issues Paper, 79 the Commissions favoured a test that focused not on good faith, but on whether the term was 'fair and reasonable', fearing that a reference to 'good faith' might be confusing to a UK audience. Their opinion changed, however, in 2013 when the Commissions announced that: We have been persuaded by the strong arguments put to us that the words of the UTD should be changed only if there is a good reason to do so. We therefore recommend that the fairness test set out in articles 3(1) and 4(1) of the UTD should be replicated in the new legislation. 80 This change is attributed to the fact that the test is now more familiar to a UK audience, and has acquired a significant body of domestic and European case-law to help interpret it. The Commissions therefore concluded that 'It no longer appears to give rise to much confusion. We have been persuaded that the benefits of changing the formulation do not outweigh the risks of introducing new uncertainties.' 81 What conclusions may be drawn from this change of heart? Those favouring Europeanisation might argue that the legal transplant has finally worked and that UK lawyers have come to accept good faith as an appropriate standard of behaviour, but it should be noted that the Commissions' Advice does not go this far. Their reasons 75. Section 62(4): 'A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer.' This was also the policy of the UTCCR; see Reg 5(1), 1999 Regulations. However, s 62(4), unlike Art 3.1 UTD, makes no reference to 'non individually negotiated' termsthis will be dealt with below. are primarily pragmatic. The decision to copy out the wording of the Directive in the 1994 and 1999 UTCCR led to UK lawyers being forced to utilise this new terminology, with the assistance of guidance from the CJEU and the Office of Fair Trading. Having gone to the effort to master these new provisions, many consultees were perhaps understandably reluctant to start again with yet another statutory test. The choice is, therefore, predicated on the need to avoid the uncertainty likely to ensue if a new statutory test were introduced, supplemented by concern of a potential clash with the CJEU. 'Better the devil you know' is hardly the strongest reason to adopt a test based on a European Directive, but nevertheless the wording of Art 3.1 of the UTD is placed at the heart of Pt 2 of the CRA.
It remains to be seen whether the Commissions' confidence is justified. The Supreme Court in November 2015 described the Art 3.1 test as 'rather opaque', which suggests that some uncertainty does still exist. 82 It should also be borne in mind that UCTA 1977 will continue to rule on what is 'fair and reasonable', albeit not in relation to B2C contracts. The guidance on the fairness test provided by the Competition and Markets Authority (CMA) 83 in July 2015 is ten pages long and not only covers UK case-law, such as Director-General of Fair Trading v First National Bank plc, 84 but also acknowledges the role to be played by the CJEU in providing guidance on the meaning of 'good faith' and 'significant imbalance'. 85 This is significant. It is a well-established principle of EU law that certain words or phrases in a directive may have their own autonomous and uniform meaning. Member States are expected to adopt this meaning, taking into account the context of that provision and the purpose of the legislation in question. 86 CJEU case-law indicates that its jurisdiction does extend to the interpretation of 'unfair terms' and, as such, its guidance should be taken into account by national courts. In Penzugyi v Schneider (C-137/08), 87 for example, the Grand Chamber of the CJEU ruled that although it was for the national court to determine whether a particular contractual term actually satisfied the fairness test, the jurisdiction of the CJEU extended to the interpretation of the concept of 'unfair term' and to the criteria that the national court may or must apply when examining a contractual term in the light of the provisions of the Directive.
In choosing to copy out the Directive, the Act gives European terminology greater prominence in this area of law. This signifies, however, that the determination of the content of the 'fairness' test requires consideration of both national and EU case-law, albeit applied to the particular facts of each case. This was accepted by the CMA and is a logical consequence of the wording of s 62. Brexit, however, does render this more contentious. While the UK remains in the EU, the decisions of the CJEU remain binding, including those interpreting the UTD. Post-Brexit, this will no longer be the case. Will such decisions become, however, persuasive authority (similar to that of the Privy Council?) 88 in interpreting s 62, or will the UK courts seek to develop their own autonomous common law interpretation of the test? Much, as with Brexit itself, remains unclear.

(II) SECTION 61 (CONTRACTS AND NOTICES COVERED BY PART 2)
Section 61(1) simply states that 'This Part applies to a contract between a trader and a consumer.' No provision is made that the term in question be 'not individually negotiated' as previously required by the 1994 and 1999 UTCCR and stated in Art 3.1 of the Directive. On this basis, the CRA provides that a term can be deemed to be unfair even if it has been individually negotiated with the consumer. The UTD as a minimumharmonisation directive permits such divergence, which goes beyond the protection required by the Directive, but it is an interesting question as to why the government has chosen this path. In their 2012 Issue Paper, the Law Commissions argued that the distinction between negotiated and non-negotiated terms raised complexity, and stated their belief that the legislation would be simpler if the exclusion of negotiated terms were removed. The key issue here, of course, is that in merging UCTA and the UTCCR, the former did cover negotiated consumer contracts and to confine the Act to standard terms would reduce the protection previously granted by UCTA. In their 2013 Advice, the Commissions went further and argued that 'the current exemption for negotiated terms in the UTCCR encourages unnecessary argument and litigation. The legislation will be simpler and more easily enforced if the distinction between standard terms and negotiated terms is removed.' 89 This represents a positive step for consumers, focusing on the potential for exploitation rather than form. It is, however, unlikely to make a real difference in practice given that very few consumer contracts can, in reality, be said to be individually negotiateda factor that influenced the Law Commissions 90 and no doubt the government. In going beyond the Directive, therefore, we see a pragmatic approach that responds to the challenges of consolidating domestic and EU legislation. Extending the provisions of the Directive to all contract terms will benefit the consumer, but highlights the fact that even pre-Brexit divergence existed in relation to the transposition of the Directive in EU Member States. 91

(III) SECTION 71(2) (DUTY OF COURT TO CONSIDER FAIRNESS OF TERM)
The CRA, s 71(2) provides that the court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it. This obligation is new and is found not in the 1993 Directive, but in the case-law The Consumer Rights Act 2015 93 of the CJEU. On this basis, s 71 is introduced to comply with EU law, notably the ruling of the CJEU in Mostaza Claro that 'the nature and importance of the public interest underlying the protection which the Directive confers on consumers justify, moreover, the national court being required to assess of its own motion whether a contractual term is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier'. 92 This obligation is justified on the grounds that the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both her bargaining power and her level of knowledge, and, therefore, to guarantee the protection intended by the Directive, such imbalance of power may only be corrected by positive action unconnected with the actual parties to the contract. 93 It is necessary, therefore, to ensure that the consumer enjoys effective protection, in view of the real risk that she is unaware of her rights or encounters difficulties in enforcing them. 94 Where the court considers such a term to be unfair it must not apply it, unless the consumer opposes that nonapplication. 95 Prior to the Act, despite a clear line of authority at CJEU level and criticism from a number of commentators, 96 there was little evidence that the English courts had appreciated the impact of CJEU case-law. Micklitz and Reich argue that this was problematic: … the insistence of the ECJ on this ex officio obligation has put Member State law on trial and seems to contradict the well-established principle of 'procedural autonomy'. But this 'procedural autonomy' … is not without limits and has to be balanced with the principle of 'effectiveness', which has a long tradition in EU law. 97 The Law Commissions in their Issues Paper acknowledged that this is an area where the CJEU had provided a definitive ruling; namely, that a national court is obliged to raise the unfairness of a term of its own motion whether or not a consumer has raised the issue. 98 The government, therefore, had little option but to acknowledge this procedural change in drafting the legislation, but it is not without a caveat. Section 71(3) states that s 71(2) does not apply unless the court considers that it has before it sufficient legal and factual material to enable it to consider the fairness of the term. This reflects the view of the CJEU in Pannon. 99 The Explanatory Notes to the Act also recognise that the courts would only have to look at the term or terms in question, not the entire contract. 100 This change will lead to contract terms coming under increasing scrutiny by the courts. A term may be held to be unfair even when the consumer has not complained of unfairness. We may speculate, however, how often this will occur. At a basic level, who will raise the court's duty to consider the fairness of a particular term where neither litigating party has appreciated that this is an issue in the first place? Further, the common law has generally adopted a model of civil procedure based on the notion of the parties themselves presenting legal arguments in their favour to a neutral judge. In spite of the changes to civil procedure introduced under the Woolf reforms, 101 it remains the case that the idea of a judge raising points of law of his or her motion bears a closer resemblance to the civilian 'managerial' judge who is responsible for factfinding and establishing the truth than that of the traditional common law judge. 102 We might also question to what extent s 71(3) will provide a fall-back for courts when a failure to comply with this duty is raised at a later stage of proceedings. Commentators have speculated that the court will be expected to refer to the case file, but it is unclear to what extent it should extend beyond that. 103 Nevertheless, the introduction of s 71 is significant in that it marks a rare occasion where a new procedural rule has been introduced into UK private law as a result of judicial activity by the CJEU. As such, its future remains uncertain post-Brexit. Will it be excised as indicative of a civilian approach to civil procedure or survive as a measure helping UK consumers and overcoming their ignorance of UK consumer law? Or will simply lethargy allow it to survive as a legacy of the UK's membership of the EU? Only time will tell.

(IV) SECTION 64 (EXCLUSION FROM ASSESSMENT OF FAIRNESS)
The UTD does controversially make limited provision for certain core terms to be excluded from the fairness test, although there is clear authority that any exceptions to the rules that seek to come to the aid of consumers who are weak vis-à-vis sellers or suppliers, both in bargaining power and level of knowledge, should be interpreted narrowly. 104 Added late in the legislative process, 105 Art 4.2 of the UTD provides that: Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language.
This seeks to ensure the inviolability of the core bargain: provided that the terms expressing it are plain and intelligible, then this should remain an area controlled by the parties, not the courts. On this basis, as the CJEU stated in Caja de Madrid, 'the terms referred to in Article 4(2), while they come within the area covered by the Directive, escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction should form the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain, intelligible language'. 106 The key question therefore is the scope of these terms that relate to the 'definition of the main subject matter of the contract' and 'the adequacy of the price and remuneration as against the services or goods supplied in exchange'. 107 As is well known, the UK courts have struggled to determine the breadth of these exceptions, most notably in the litigation over bank charges, which culminated in the 2009 Supreme Court decision Office of Fair Trading v Abbey National plc. 108 This was a test case in which the OFT challenged whether charges for unauthorised overdrafts fell within the Art 4.2 exemption. Reversing the decision of the Court of Appeal, the Supreme Court found in favour of the banks. The bank charges, in its view, constituted part of the price or remuneration for the bank services provided and there was no reason to read into the provisions a distinction between the main and incidental price. On this basis, provided that they were in plain and intelligible language, the banks' overdraft charges could not be assessed for fairness.
The decision of a UK court to adopt a broad interpretation of Art 4.2 was controversial, not least in view of the fact that the Supreme Court disagreed with the decisions of the Court of Appeal and High Court and yet refused to refer the question to the CJEU under the Art 267 TFEU preliminary reference procedure, noting that there was a strong public interest in resolving the matter without further delay. 109 The Law Commissions in their Issues Paper of 2012 highlighted the uncertainty that followed this decision for both consumers and traders and recommended changes to the existing regime. 110 They also noted the possibility, flagged by academics, 111 that the decision might find itself in conflict with the jurisprudence of the CJEU. They suggested, therefore, that to ensure that the UK's implementation of Art 4.2 was certain enough to withstand any decisions of the CJEU, a 'slightly higher' level of consumer protection was needed, which would narrow the scope of the exemption. 112 Following their recommendation, s 64 of the CRA provides that: (1) A term of a consumer contract 113 may not be assessed for fairness under section 62 to the extent that - The key feature is the addition of the 'prominence' requirement to the pre-existing requirement of transparency (or 'plain and intelligible language' in the Directive). This was recommended by the Law Commissions and signifies that the wording of the term is brought to the consumer's attention in such a way that the 'average consumer'who is reasonably well informed, observant and circumspectwould be aware of it. The exemptions are also redefined to render them clearer. One notable development is the clarification that the price exemption is confined to 'the appropriateness' of the price and will not extend to other price-related issues such as price variation clauses (which are included, in any event, in the grey list found in Pt 1, Sch 2). 116 The Explanatory Notes give the example of an individual who contracts with a catering company to provide a buffet lunch, and the contract includes a term that the individual will pay £100 for a three-course meal. Here, the court cannot look at whether it is fair to pay £100 for three courses, but it may look at other things, such as the rights of the company and the individual to cancel the lunch, and when the price is due to be paid. 117 The aim is greater clarity, but a number of questions remain. The most obvious issue is what the prominence test adds to the test of 'plain and intelligible language'. The Explanatory Notes to the Act give the example of a term in the small print. 118 Prominence, it is submitted, will require the trader to make efforts to ensure that the reasonable consumer would notice the terms in question. In their 2012 Issues Paper, the Law Commissions speculate that the more unusual or onerous the term, the more prominent it needs to be. 119 This is indeed in line with common law authority such as Interfoto v Stiletto, 120 but does give the courts considerable discretion on the facts of each particular case. It remains to be seen just how demanding a test of 'prominence' will be in practice. It is clear that the underlying justification is that of presenting traders with a choiceeither to fail the test of transparency and prominence and run the risk of a finding of unfairness, or to present the terms in a way that the average consumer would be aware of their existence.
The 'average consumer' in ss 64(4) and (5) is a key component of the prominence requirement and here the Act relies upon a concept found in European private law. There is no explicit reference to this concept in the UTD, but it has arisen in other contexts and sets an objective standard of the reasonably well informed, reasonably observant and circumspect consumer. 121 It is not without criticism, however, both from EU 122 and common lawyers. 123 Hondius, for example, juxtaposes the 'weak' consumer who is hardly able to read a contract and in need of information about every conceivable item, with the 'EU' consumer who is the well-advised citizen who wishes to make full use of the internal market. 124 In choosing to adopt this standard based on EU internal market policy, the Act thus introduces a European concept, albeit one that does not seem out of kilter with current UK law. 125 It should not be assumed, however, that the idea of the EU consumer is either used consistently across EU law 126 or is static. Recent case-law suggests that the objective consumer must not only be presented with a term that is grammatically intelligible, but also that the consumer should be in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for her that derive from the term, given the level of attention to be expected of the average consumer. 127 Is this a more onerous test than that stated in s 64? The problem with importing a European standard is that its meaning will evolve according to decisions of the CJEU, Brexit or no Brexit. This signifies that decisions of the CJEU on the 'average consumer' will remain relevant, even if no longer binding on the UK courts post-Brexit, and places an onus on national courts to monitor the evolution of this concept beyond the 2015 Act.
There also remains the issue of the scope of the exemptions themselves: a term specifying the main subject matter of the contract, or raising the issue of the appropriateness of the price payable under the contract. In relation to the main subject matter of the contract, there is clear European authority that the exemption should be limited to terms that describe the essential obligations of contracts concluded between a seller or supplier and a consumer. 128 The CJEU in Kásler 129 provides useful guidance. The case concerned a dispute relating to the terms of a mortgage, whereby the outstanding amount was calculated according to the buying rate of Swiss Francs (on the day when the contract was concluded), but the instalments were based on the currency's selling rate, which is usually higher. The CJEU drew a clear distinction between terms that 'lay down the essential obligations of the contract and, as such, characterise it' and 'terms ancillary to those that define the very essence of the contractual relationship'. 130 The latter cannot fall within the notion of the 'main subject-matter of the contract' within the meaning of Art 4(2) of the Directive. Such a distinction should logically be read into s 64(1)(a).
Section 64(1)(b), in contrast, does not introduce any division between main and ancillary price terms; rather, the issue is the nature of the termdoes the complaint relate to the appropriateness of the price in question or other concerns? Again, Kásler is helpful here in highlighting that the exclusion is limited to the adequacy of the price and cannot apply where there is a challenge (as in this case) to terms that merely determine the conversion rate of the foreign currency in which the loan agreement is denominated. 131 The interface between EU and UK law is of particular interest in this context. In favouring a test of the 'average consumer' and framing the base level of consumer protection on concepts such as transparency and prominence, the Act is supporting a market-led approach that expects consumers to be self-reliant and protect their own interests. 132 The goal is to prevent consumers from being unfairly surprised by contract terms of whose existence they could not reasonably be expected to be aware. This will, it is assumed, encourage consumers to be more confident in making transactions, increase consumer choice and thereby raise the level of consumer protection. This is indeed consistent with one of the goals of the Directive in removing market disparities and distortions in competition, 133 together with its constitutional base of Art 114 TFEU, which is a measure 'for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market'. Further, the Commission's 2012 Consumer Agenda was stated to be one of promoting measures that empower consumers, enabling them actively to participate in the market. 134 While this has not prevented academics such as Willett from asserting that it is still possible to develop the 'average consumer' concept in relatively protective ways, he concedes that this would require regulators and national governments to play a key role in maximising this level of protection. 135 This is not, however, the intention of s 64. In framing the exemptions within a framework in which both traders and consumers make informed choices, the intention of the government is clearthe trader's duty is solely to ensure that terms covered in s 64(1) are clearly brought to the consumer's attention. Section 64, it is anticipated, will remove the uncertainty created by the Abbey National decision and avoid any clash with the CJEU. The aim of this section is therefore not to overturn the Abbey National case, but render its application as a precedent more straightforward, responding to the concern of the Law Commissions that the case might give traders a false sense of security, while discouraging consumers from challenging similar terms. Section 64 seeks, therefore, to restate the Art 4.2 exemption in more 'user friendly' language, making clear that other aspects of the price other than the amount, for example timing of payment, can be assessed for fairness. It will remain the case, however, that if the traders are vigilant in satisfying the tests of transparency and prominence, there is no reason why the core exemptions should not continue to operate successfully in UK law.

CONCLUSION
The CRA is an important piece of legislation, both for consumers and contract lawyers generally. It seeks to simplify, strengthen and modernise UK consumer law, and to resolve inconsistencies and overlaps caused by the implementation of EU legislation in domestic law. The decision to absorb and consolidate a number of EU directives must, however, now be considered in the light of the decision in the June 2016 referendum that the UK should withdraw from the EU. Embedding EU consumer law in a landmark piece of national legislation marks the successful transplantation of EU law and values into the heart of the common law system of law. In consolidating domestic law with selected EU directives, Parliament has engaged in a process which Gerstenberg recently described as 'an alignment of national law with the EU's shared fundamental values and principles.' 136 This, he argues, requires a non-hierarchical, participatory dialogue between national and European Courts. It is not therefore simply a matter of tidying up inconsistent pieces of legislation, but involves the introduction of distinct forms of reasoning and conceptual frameworks into UK law. 137 Yet, this paper has argued that the impact of EU law on the provisions of the Act should not be exaggerated. The Act does not implement the CRD and Pt 1-which transposes the 1999 CSDabsorbs the CSD into a wider framework of (common law) statutory rights and remedies. This diminishes not only the visibility of these instruments, but also their impact. No attempt has been made to tackle the conceptual divide between the common law and civil law idea of remedies. This ideological gulf is papered over, with a signpost erected to point the consumer to a free choice of remedies. This reflects the dominant concerns of UK lawyers, as identified by the Law Commissions in their 2009 Report. 138 Part 2, in contrast, does reflect to a much greater degree the influence of EU law. It is clear that ss 62, 64 and 71 were introduced not only to resolve uncertainty in the law, but to avoid a potential clash with the CJEU made apparent in the reports of the Law Commissions and in the reaction to the Abbey National decision. Indeed, the adoption of the Art 3.1 UTD test for unfairness for all consumer contracts, be they standard term or not, appears to be a strong step towards a common European standard of protection across Member States. Regardless of the reasons for this step, which it has been suggested may be based more on convenience than ideology, UK law has accepted a test previously described as a 'legal irritant' by one learned writer. 139 Equally, s 71 indicates recognition by the UK government that decisions at CJEU level may have led to procedural changes in UK private law. Section 64 seeks to solve the 'Abbey National problem' by bringing UK law more in line with decisions of the CJEU, albeit by adopting a market-led approach based on the reasonably well-informed, observant and circumspect consumer. What this means in practice is that, pre-Brexit, UK courts must ensure that they follow the interpretative guidance of the CJEU when deciding matters relating to transposed EU law. Post-Brexit, this indicates that certain key decisions will need to be made. First, it must be resolved which, if any, of the EU-sourced provisions of the Act should be repealed. In view of the long-standing influence of the provisions of the 1993 UTD and the 1999 CSD on UK law and the destabilising effect of change, it seems very unlikely that any government will engage in the effort needed to amend an Act that only came into force in October 2015. A more pertinent question, therefore, is how the courts will interpret such provisions post-Brexit. I have suggested that the decisions of the CJEU should continue to be considered as persuasive authority, although this may weaken over time if the text of the directives change. The 1993 and 1999 Directives, for example, are currently subject to the Commission's Regulatory Fitness and Performance Programme (REFIT), which is currently evaluating if they remain fit for purpose. The 2011 Directive is also subject to review. EU consumer law is also far from static. It is often unsettled and subject to change both in terms of new judgments of the CJEU, but also alterations of policy and fresh initiatives at the Commission level. 140 The European Commission is, for example, currently putting forward proposals for two new consumer directives on contracts for the supply of digital 138. It is noticeable that the focus of the Law Commissions' 2009 report on Consumer Remedies (above n 16) was that of retaining the common law right to reject despite the provisions of the 1999 Directive rather than critically assessing the transposition of the 1999 Directive into UK law. 139. Teubner, above n 61. content 141 and contracts for the online and other distance sales of goods. 142 There is a chance, therefore, that the CRA will embody a version of the directives that gradually becomes dated over time, rendering EU law of diminishing relevance.
Where, therefore, does this leave the aim of the CRA to remove obvious signs of tension between EU and UK consumer legislation? The Act is an ambitious and landmark piece of legislation. Nevertheless, problems of interpretation remain, not least for the poor consumer, who faces a complex piece of legislation that does not even consolidate all UK consumer rights legislation. This paper has argued that the tensions between EU and UK consumer legislation have not been fully resolved, but that certain policy decisions have been made, some of which make express reference to EU law and principles. Pre-Brexit, this means that the courts need to appreciate that in applying this new domestic statute, they will have to refer to CJEU case-law and monitor future developments, notably in the area of unfair terms. Should the CJEU, for example, continue in its more dynamic approach to the UTD, 143 this will be relevant to the application of Part 2 of the Act. Post-Brexit, the courts will need to resolve how to interpret provisions introduced into UK law by EU directives. It is submitted that EU law should continue to have some influence on the development of UK consumer law in the same way that the donor system of a legal transplant might prove a reference point for its future interpretation. 144 This may prove to be controversial but, in reflecting changes made to UK consumer law by EU directives for over 20 years, the Consumer Rights Act 2015 highlights the difficulty, perhaps impossibility, of reverting back to a purely common law form of consumer law.