From ownership to use: how well is the consumer legally protected?

A Changing Pattern of Consumption

Her interest in the subject arose from everyday observations. As she explains: “My interest in this topic was sparked by the fact that I increasingly saw these forms of consumption emerging within my own environment.” Digital platforms make it ever easier to use products without owning them, by connecting consumers with peers or professional providers. “I was fascinated by how consumers could thus gain access to the use and enjoyment of a product without the burdens traditionally associated with ownership.”

When De Vogel refers to ‘use’, she does so deliberately. She is not simply referring to lease or hire in the classical sense. Many contemporary usage models are more complex and consist of a combination of product and service. In so-called Product–Service Systems, the use of a product is frequently linked to additional services such as maintenance or insurance. This renders such models fundamentally different from traditional sale or hire. “Usage models provide access without the burdens and responsibilities of ownership. The shift from ownership to use therefore marks not merely a different way of consuming, but also a redistribution of risks, responsibilities and rights between providers and users,” De Vogel observes.

From Ownership to Use: What Changes?

The shift becomes apparent when different forms of use are compared from a legal perspective. In the case of ownership, the consumer’s legal position is relatively strong and clearly defined. The consumer falls within the regime governing consumer sales and may invoke mandatory remedies in the event of non-conformity, such as repair, replacement or termination of the contract.

In the case of exclusive use, such as private lease arrangements, that protection is less self-evident. The consumer enjoys long-term, individual use of the product, yet does not become its owner. “Although long-term exclusive use displays characteristics of sale and credit, there is a lack of clarity as to what the consumer is entitled to expect and which rights apply if the product or service fails to meet expectations,” De Vogel explains. European rules on consumer sales and credit generally do not apply, resulting in legal uncertainty.

In situations of shared use, such as car-sharing or e-scooter schemes, that uncertainty increases further. These are typically short-term, often incidental agreements in which multiple users have access to the same product. Traditional consumer rights fit this model poorly. As she notes: “Here too, it remains unclear what the consumer may legitimately expect and which mandatory rights he possesses if the product or service proves defective.” In practice, repair or replacement is difficult to organise, and withdrawal rights are often inapplicable due to the short duration and logistical complexity involved.

Practical Difficulties for Consumers

These legal questions become tangible in everyday scenarios. De Vogel refers to the use of a shared bicycle. “What are you actually entitled to expect from such a vehicle? May it have scratches, or may the lighting be absent? And suppose that halfway through your journey you discover that the bicycle is defective, or that you are unable to end the ride and therefore continue to be charged. What are you entitled to as a consumer? Do you have a right to repair, replacement or compensation?”

Comparable questions arise in cases of exclusive use, such as leasing a washing machine or coffee maker, where it may be unclear who bears responsibility for maintenance, defects or costs in the event of early termination. A key distinction from traditional sale is that many classic consumer rights do not automatically apply to usage models. In the case of sale, the consumer benefits from a clearly defined set of mandatory statutory rights, from which no derogation to the consumer’s detriment is permitted, including the right to repair or replacement in the event of non-conformity and the right of withdrawal in distance contracts. “In usage models, these rights often do not apply, or only partially,” De Vogel states. This renders such models legally less predictable and may place consumers in a vulnerable position.

Unequal Protection: When Does It Become Problematic?

The fact that protection in usage models does not mirror that in sales law is not necessarily problematic in itself. “That inequality only becomes truly problematic when the rationale underlying a rule is indeed relevant to users, yet the rule affords them no protection because it does not apply to them.” At the same time, De Vogel cautions that it is not always desirable to apply extensive protective mechanisms to very small-scale or short-term transactions. “The challenge therefore lies in striking an appropriate balance,” she remarks.

In practice, part of that balance is sought through general terms and conditions and through self-regulation. Sectoral quality marks may offer a higher level of protection than the (minimal) statutory rules currently applicable to usage models, as the sector itself possesses detailed knowledge of the model concerned. “Self-regulation may encourage market participants to provide a higher level of protection,” De Vogel notes. Nevertheless, this approach has evident limitations. Compliance is voluntary and enforceability limited, meaning that consumers cannot always be certain of their rights. Government regulation therefore remains necessary, in her view, in order to guarantee equivalent protection and legal certainty.

Sustainability and the Role of Europe

The transition from ownership to use is often presented as more sustainable, yet De Vogel adopts a cautious stance. “The sustainability benefits of usage have not, thus far, been convincingly demonstrated.” Although the underlying assumption is that products will be used more efficiently and have a longer lifespan, certain studies even suggest contrary effects. Nonetheless, policymakers within the European Union regard this transition as a significant opportunity, provided it is carefully guided.

For that reason, European legislation is of considerable importance, according to De Vogel. Consumer law is regulated at EU level in order to protect consumers as the weaker party and to ensure a level playing field for businesses. “The current EU consumer law framework does not yet support the transition from ownership to use. Although usage contracts have not, to date, been harmonised, a new directive could fulfil that role. In my view, a new directive is required to provide both providers and consumers with certainty, while respecting the objectives of EU consumer law. It may even support the transition towards usage.”

Use as a Fully-Fledged Alternative to Ownership?

De Vogel considers that usage models can develop into a genuine alternative to ownership only if legal protection evolves accordingly. “A robust private-law framework may serve as a catalyst for circular and sustainable business models.” Without clear and enforceable rules, there is no level playing field between providers of ownership and providers of use, and the full potential of this new mode of consumption will remain unrealised.