Do We Need ‘Consumer Protection’ for Small Businesses at the EU Level?

Abstract

I will discuss the protection of small businesses (SMEs) along the lines of consumer protection, i.e. the protection of the weaker business party against the stronger business partner. I will limit my essay to Union law initiatives and in particular my questioning of the necessity of such protection will only relate to this level. Obviously that question is linked to the internal market. At the EU level the protection of small (and medium sized) businesses is rather new. As will be seen hereafter, this protection is taking shape in the form of an extension of existing consumer protection measures to SMEs and sometimes to all businesses. The adoption of further consumer protection type of measures for small businesses is on the agenda of the Commission in at least two respects: unfair commercial practices and unfair contract terms, although the proposals made or contemplated in both area’s amount to try to remedy the same phenomenon: the imbalance in bargaining power between large and small businesses. In this essay I will briefly look at these new instruments in the light of the only objective that could justify them: the approximation of the laws of the Member States which have as their object the establishment and functioning of the internal market (Article 114 TFEU).