欧洲消费者执法法的转型:司法与行政审判、手段与效果

F. Cafaggi
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引用次数: 1

摘要

消费者法的执行的特点是司法和行政制度相结合,涉及欧洲和国家机构。《公约》第4条第3款规定的真诚合作原则要求双方在忠诚的基础上进行制度性对话。《基本权利宪章》,特别是《基本权利宪章》第47条,越来越多地在法院和行政当局行使执行权之前的执法过程中发挥作用。权利(在欧盟层面)和补救(在成员国层面)之间的分离在等效和有效性原则的推动下已经瓦解。基本权利,特别是获得公平审判和有效司法保护的权利,正日益影响到行政执法和司法审查的范围。各国法院作为欧盟法律执行者的作用早已得到承认。然而,行政执法与司法执法之间的互动方式在一开始被忽视;近年来,包括私人司法在内的不同执法机制的协调日益受到重视。这篇文章审查了法院与行使广义执法权的行政当局之间相互作用的制度设计的弱点。欧洲和国内执法机构之间的机构对话一直是欧洲消费者法法律创新的重要推动力。不同层次的执法不是分开的,而是不断地、经常是战略性地相互作用。本章讨论并比较了作为消费者法司法和行政执法特征的不同形式的制度对话,以及《联邦法规》第47条关于有效司法保护权的潜在作用。它表明,程序自主原则受到侵蚀,在这方面,基本权利和一般原则在界定消费者执法架构方面发挥着越来越大的作用。最后,本文分析了消费者法的司法和行政执法如何根据《宪章》的影响进行重组。从多层次方法到对话方法的转变迫使我们重新思考国家和欧洲执法者如何相互作用,创造出一套在统一性和多样性之间紧张的规则。战略互动的视角为传统的多层次文献,特别是执行机制的具体运作提供了额外的、更有说服力的解释。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
On the Transformations of European Consumer Enforcement Law: Judicial and Administrative Trialogues, Instruments and Effects
The enforcement of consumer law is characterized by a combination of judicial and administrative regimes that involve European and national institutions. The principle of sincere cooperation, enshrined in Art. 4(3) TEU, imposes the engagement of institutional dialogue based on loyalty. Increasingly, the Charter of Fundamental Rights (CFR) and, in particular Art. 47 CFR, plays a role in shaping enforcement both before courts and before administrative authorities exercising enforcement power. The separation between rights (at the EU level) and remedies (at the Member State level) has disintegrated, driven by the principles of equivalence and effectiveness.Fundamental rights and in particular the right to fair trial and to effective judicial protection are increasingly influencing both administrative enforcement and the scope of judicial review.The role of national courts as enforcers of EU law has long been recognized. However, the modes of interaction between administrative and judicial enforcement has been initially neglected; in recent years, increasing attention has been devoted to the coordination of different enforcement mechanisms, including private justice. This contribution examines the weaknesses of institutional design of the interaction between courts and administrative authorities exercising enforcement powers, broadly defined. Institutional dialogue between European and domestic enforcement bodies has been an important driver of legal innovation in European consumer law. The different levels of enforcement are not separate but rather interact continuously and often strategically. This chapter addresses and compares the different forms of institutional dialogue that have characterized judicial and administrative enforcement in consumer law and the potential role of Art. 47 CFR on the right to effective judicial protection. It shows that there is an erosion of the principle of procedural autonomy, in respect of which fundamental rights and general principles play an increasing role in defining the architecture of consumer enforcement. It concludes by analyzing how judicial and administrative enforcement of consumer law may be recombined in the light of the Charter’s impact. The shift from the multilevel approach to the dialogical approach forces us to rethink how national and European enforcers interplay, creating a body of rules strained between uniformity and diversity. The perspective of strategic interaction offers additional and more convincing explanations to the conventional multilevel literature and especially to the concrete operations of enforcement mechanisms.
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