NUEVAS PERSPECTIVAS EN LA LIQUIDACIÓN DE DAÑOS A CONSUMIDORES Y USUARIOS EN EL PROCEDIMIENTO ADMINISTRATIVO DE CONSUMO.

Abstract

There is a wide variety of sectorspecific rules in force empowering the government authorities to pay private persons settlements for damages. In each of those rules, public and private interests run together and become superimposed on one another in a unique way. Article 48 of the Revised General Act for Consumer and User Defence (RGACUD) is the starting point of this study, as it may be anticipated to prove to be the way of remedying a consumer protection deficit that seems to have been a matter of interest for some time in Spanish consumer law. Although it has been said rather pessimistically that by now the 2007 RGACUD has turned into «a dead-end road that has no clear purpose», this study proposes to investigate the possibilities of interpretation that can be found behind the ambiguity of article 48 RGACUD. Article 48 seems to force many of the approaches that are now in the midst of the transformation process. It is an ambiguous but perhaps useful and pertinent instrument for making headway in the new dogmatic perspectives, and also in the search for greater operativeness and efficacy in this specific realm of private law in our country. The study, in short, attempts to explore how far this unique type of administrative intervention can be extended in the inter-private sphere within the penalising procedure. At the same time, the paper endeavours to ascertain whether there are sufficient reasons for the authorities to remedy the well-known frustration of the average consumer, by which we mean the situation where a consumer registers a complaint, observes what action the authorities take and finds that in the end the authorities fail to fix his own particular problem with the perpetrator of the damage and that he is forced to take other kinds of action, in the clear awareness of having wasted precious time. Historically speaking, first there were different national rules belonging to different sectors of legislation, all calling for a special regulation of the administrative procedure (a special regulation that was not envisaged in the general regulation of the common administrative procedure in Spain's Legal System for Public Administrations and the Common Administrative Procedure). With article 48 RGACUD, we have now arrived at a point where we have got to analyse whe ther it is feasible to generalise such approaches, at least in the sector of consumer law. We must accept that there is a «tendency to expansion» by the administrative regulation in the settlement of damages in the broad sense. But although we can detect a new scenario opening in consumer protection, we think that the legal instruments that should be clarifying and consolidating the situation are still imperfect and insufficient. All doubts and dysfunctions should be faced as soon as possible by the state in coordination with the regional governments within the legal framework of the Consumer Sector Conference, for the sake of legal certainty and market singularity.