الفهرس 
مفهوم المستهلك في التوجيهات والاتفاقيات الأوربيةيوجد فقط 14 صفحة متاحة للعرض العام
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المستخلص
The huge development in the area of industry that has
taken place recently has led to domestic and universal
markets being filled with so many consumer goods. This
development in all areas has a great reflection on the
methods of distributing these goods and services.
Several and diverse mechanisms have appeared and
through these mechanisms these goods and services are
marketed.
The consumer in his capacity as the weaker party to the consumption contract needs always
protection against the professional person who is often stronger than the former because of his
experience, professionalism and economics power. Thus, this must be researched and there must be an
attempt to impose a protection for non-professional or the consumer at all stages of the
contractual relation also at the stage of pre contracting until the required balance as for the
contractual relation is struck in this kind of contracts. Therefore, we intended to begin this
study.
We have shown the concept of consumer more differently than what has been shown by the Egyptian
jurisprudence through his definition mentioned in the various European Directives. Also,
we showed the extension of this concept in the member states to the European Union to other
categories of persons including the end user of the good, the professionals who make contracts
outside the framework of their professional activity the legal persons and users or employees as
well as the mixed contracts.
Also, there are unclear extensions of the concept of consumer including the saver and the user of
public services as two examples in this regard. We clarified the economic and legal concept of the
saver. In addition, we demonstrated the user’s status as for the points of similarity and
difference between him and the consumer as well as the applicable
system to him. Then, we showed the concept of the
consumer in the Egyptian law and the concept of the
consumer from our point of view.
We have shown the consumer protection at the stage of pre contracting and at the stage of making
the contract and performing it. This demonstrated the great importance of compliance with informing
and the liability resulting from the breach of the pre contracting obligations. We have addressed
the information the consumer must be informed of the stage of pre contracting. We have seen to show
the information provided for by the directive 2011/83/UE. This information was mentioned in
Articles 5 and 6 of this directive and it contains the main characteristics and features of the
goods and services as well as total price of the good or the service , the identity of the
professional of the offer or , the information related to the obligation resulting from the
contract , the information related to the functions of the digital content and the procedures of
technical protection if necessary in addition to the information related to the acts in between
that are appropriate to the digital content with some devices or programs that are supposed that
the professional is aware of. This is the information provided for by Article 5 of the said
directive. But Article 6 provided for the information related to the consumer’s right to disregard
the distance contract including the electronic contract as well as the information related to the
seller’s guarantee that the sold item corresponds to the specifications and if necessary the post
sale service , commercial guarantees and the conditions connected with them , the information
related to the cost of using the telecommunication technique , the information related to the
minimum limit of the period of the consumer’s obligations , the information related to the code of
conduct , the information related to the possibility of resorting to non- judicial procedures to
claim the compensation and the information mentioned in Article 5 on all types of contracts. But
the information mentioned in Article 6 is on the distance contracts including the electronic
contracts. We have shown
the liability for the breach of the pre contracting obligations as for the consumption contracts.
There is apart of jurisprudence that sees that this liability is of contractual nature. Another
part sees that it is of a special nature. Others see that it is of tort character. As for
compensation for this liability, the lost gain was a cause for the judicial reluctance in France.
We showed the principle of estoppel as a basis for the pre contracting liability. This is an
advanced jurisprudence imported by French jurisprudence from the English jurisprudence. And it
developed this principle from the defensive character to the offensive character. We tried to
determine the moment of making the contract. In this regard, we referred to the theory of ”
Punction ” that is originally German. Also, we showed the consumer protection upon the
conclusion of the contract as for some prohibited types of sales. Also at the stage
of the performance of the contract, we showed the latent defect as for its definition, conditions
and the possibility of amending the provisions on the guarantee of the latent defect as well as the
possibility of the consumer protection from the hazardous products. We have
referred to the compliance with safety as a basis for the producer’s liability and the
compliance with informing as a basis for this liability. We showed the contractual liability at
this stage and the liability in tort. We showed guarding as a basis for the liability in tort as
well as the indivisibility of guarding. We addressed the objective liability resulting from the
breach by the producer of this obligation at this stage. We clarified the methods of suspending
this liability including the defense of the technical condition. In this regard, we showed
the risks of the scientific advancement and the difference rose about considering them as a cause
for the exemption from liability or not. We saw the non admission of the risks of scientific
advancement as a cause for the exemption for liability. We suggested the principle of the absolute
guarantee against the risks of scientific advancement and we called it ”theory of Absolute
liability against the risks of scientific advancement” and we suggested how to remedy the
damage
resulting from this liability. Also, we suggested one element of this liability that is the element
of damage and the condition of causation, between the damage and the developed good.
In addition the status of the scientific knowledge never allows for discovering the defect.
Moreover, we showed another aspect of protection
that is the consumer’s right to privacy.
In this regard; we showed the consumer’s right to the bodily
privacy as for the medical contract through the compliance
by the physician to keep the loins of the patient and not to
uncover it except with criteria.
Also, the physician is bound not to reveal the secrets of his patients except in certain cases in
which he may reveal the secret of his patient and the mandatory case in which he must reveal this
secret. In this regard, there is also another aspect of protection that is his right to the privacy
of the information related to him especially the electronic consumer. This information
includes his personal data, the privacy of the electronic payment tool for him, his electronic
signature, and the consumer’s right to privacy in relation to his banking transactions. The
researcher showed the exceptions to this right. One of the important notes we commented on in this
regard is the contradiction of revealing the banking secret to exercise control over the bank with
the consumer’s right to privacy.
We showed correspondence that is divided into two types:
physical correspondence and non physical correspondence.
As for the physical correspondence, it is divided into descriptive correspondence, functional
correspondence and the quantative correspondence.
But the non physical correspondence is the legal correspondence. Then, we showed the
affecting of
correspondence and some rules of the protective nature for achieving correspondence.
Also, we showed the sale of the used goods and its impact on complying with correspondence.
The most important points in this regard are discovering of non correspondence subsequent to the
process of inspection by the buyer and we showed that the consumer can’t invoke the non
correspondence except in case of proving it undoubtedly and we clarified the conditions of
considering the non compliance that is discovered late and subsequent to the process of inspection
by the buyer.
These conditions are the original existence of non correspondence, it functional danger ,
its latent character and the buyer’s good faith. There after , we showed the sanctions resulting
from non correspondence as well as the legal guarantee mentioned in the Egyptian consumer
Protection law and its position towards the conventional guarantee. Because of the importance of
post sale service for achieving correspondence, we showed it and the practical difficulties of this
service and as the correspondence of the goods is important, the correspondence of services
is equally important.
We tried to show some aspects of the disputes raised between the consumer and the professional and
the means of achieving the consumer protection.
We divided this aspect into two divisions: The first is related to the traditional disputes and the
second is related to the disputes raised online. The former that is connected with the consumption
contracts includes the disputes affecting the individual interest of a certain consumer and also
the common interest of the consumers.
But the disputes that affect the individual interest of a certain consumer are divided into two
divisions: The first is
in case the consumer is a creditor and the second is in case the consumer is a debtor. As for the
former, the consumer is entitled to resort to alternative methods of resolving the consumption
disputes and they are represented by mediation, conciliation, reconciliation or arbitration. And we
clarified that in spite of the great importance of mediation and conciliation, they aren’t popular
in most cases because of the unawareness of the parties of their effectiveness as to the settlement
of the consumption disputes in a way that resulted in not resorting to these two methods as well as
the lack by the decision rendered by the mediator or conciliator of the argumentativeness of chose
jugé. This induced the parties to resort to arbitration and litigation because they believe that
these are the most appropriate ones to reach what they want.
Also , we showed the importance of establishing the judiciary of small disputes in Egypt in the
area of the consumption contracts like France because of its appropriateness to the nature of the
consumption contracts. But in case the consumer is a debtor there are non judicial methods that
might be resorted to by the professional due to reasons related to the economy of procedures , the
rapidity of resolving the dispute and the low costs. Also , there are judicial methods that might
be used by the professionals against the consumers.
In case the consumer is in indebtedness , the legislator in France has set out some protective
procedures in order for the consumer not to have this problem including a leeway for. thought ,
feasibility study and the establishment of a national record for the cases of non payment.
Also a system for treating this problem for the consumer has been set out.
We showed the disputes that affect the common interest of the consumers which includes the defence
of the collective interest of the consumers through the administrative methods. For example ,
General Department
of consumption , deterrence of fraud and misrepresentation
has been created by French legislator with some
jurisdictions:
* Monitoring the publicity of prices, trade practices and the
conditions of the contracts.
* Monitoring the correspondence of the products and
services.
* Monitoring the safety of the goods and services.
The French legislator gave certain administrative authorities a role in setting a limit on the
harmful acts to the consumers. Also, he gave some authorities a jurisdiction related to cooperating
with the foreign departments for achieving a bigger protection of the consumer for circulating
goods among the states and we referred to that an international network has been established for
monitoring the trade practices. Also, there was an encouragement for establishing organizations or
authorities called ” Euro windows ” for the purpose of achieving.
Cooperation among the authorities of the different states for protecting the collective interest of
consumers a cross the borders of the member states of the European Union. For achieving so , the
state must establish an office called ” Unique office of liaison ” used as a medium ”
among the authorities having power in the various countries. The power submits the request to this
office in this state and this request is immediately submitted to the same office in the other
country and this office submits the request to the competent power of this state.
As for countries that aren’t members to European Union , the general department in France
undertakes the role of cooperation with these countries.
Also , there are some judicial methods of defending the collective interest of consumers such as
initiating the
action from Public prosecution and filing some actions such
as the stopping action filed by the consumer protection
societies.
Owing to the modernity of dealing online , there must be consumer protection while dealing and
contracting online because of difficulties connected with the competent court and the applicable
law.
Also, the nature of contracting online makes it necessary to work for protecting the consumer as to
the disputes related to the nullity of the electronic contract including the capacity of
contracting online. So most legal systems obligate the party who is to contract online to enter his
full data such as his name, age, nationality etc.
We saw that it is logic to show the disputes related to liability of the internet service provider
and intermediate services provider including information provider, sheltering provider and access
provider. We commented that there are two contradictory roles done by the intermediate service
provider on the internet. They are the role of keeping the information related to the users of
personal websites, their communications and not violating their privacy on one hand and his role in
disclosing some information based on the order of the judicial authority that helps implement the
law.
It is noteworthy that a protocol has been signed between the Association of internet service
providers and the ministries of justice and telecommunications in the states of European Union and
it was renamed ” Point of Judicial liaision ” for the purpose of fighting the illicit contents. We
see that there is a legislative gap in Egypt in the area of the electronic liability. Thus , the
Egyptian legislator has to keep abreast of the various legislations in this noticeable development
in the world of internet.
The legislator in most techniques has tried to achieve the greatest extent of consumer protection
at all stages whether precontracting or post contracting at the stage of performing the contract.
He gave him another advantage which exempts him from getting involved in conflict and disputes with
the professional.
This advantage is to disregard the contract as a whole. European directives and French legislator
made this right absolute without obliging the consumer to present the reasons.
But the Egyptian legislator has linked this right to the existence of a defect as for the good or
its non correspondence to the specifications or the purpose for which contracting has been done.