Reading a Duty to Provide Accessible Pre-Contractual Information for Consumers with Disabilities into EU Consumer Protection Law

This paper considers whether a duty to provide consumers with disabilities with pre-contractual information in an accessible format, or in an otherwise personalised format, can be read into EU consumer protection law. Such a duty could be regarded as a particular form of reasonable accommodation. The paper explores this issue in the context of three key consumer protection instruments: the Unfair Commercial Practices Directive, the Consumer Credit Directive, and the Consumer Rights Directive. The paper argues that the Directives should be interpreted in light of the EU’s obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD) which addresses, inter alia, the accessibility of information. Whilst consumer protection is an area of shared competence between the EU and its Member States, the three Directives examined in the paper largely provide for “full harmonisation,” thereby limiting the scope Member States have for taking action in these fields. In light of this, the paper argues that the EU has, to a large degree, taken on responsibility for complying with the CRPD in these fields, and that the Directives should be interpreted in light of those obligations. The EU Charter of Fundamental Rights can further bolster a human rights compatible interpretation of EU consumer protection directives. The paper also considers the extent to which the Directives allow Member States some residual competences to set requirements concerning pre-contractual information for persons with disabilities. To the extent that such competences exist, the paper argues that CRPD-compatible minimum requirements for pre-contractual information provided to consumers with disabilities should be read into the Directives by the European Court of Justice. Establishing CRPD-compatible minimum requirements in this field would reduce the need for individual Member States to take action to comply with the CRPD, and therefore reduce the risk of divergent national standards which could undermine the internal market goals of the relevant Directives. The paper concludes that a duty to provide a de facto reasonable accommodation, in terms of accessible and additional information, can be read into the Consumer Credit Directive and the Consumer Rights Directive. A more limited duty, concerning only the provision of additional information for persons with disabilities, can be read into the Unfair Commercial Practices Directive. It is unclear whether case law of the Court of Justice can be interpreted as requiring the provision of accessible information under this last Directive.