European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Pursuant to Article 7(2) of Directive No 93/13, organizations which have a legitimate interest under national law in protecting consumers are empowered to take action before the competent courts to seek the termination of the use of unfair terms by traders. Paragraph 3 adds that these legal remedies may be directed against traders or their associations which use or recommend the use of those terms …

Action by associations

Pursuant to Article 7(2) of Directive No 93/13, organizations which have a legitimate interest under national law in protecting consumers are empowered to take action before the competent courts to seek the termination of the use of unfair terms by traders. Paragraph 3 adds that these legal remedies may be directed against traders or their associations which use or recommend the use of those terms. The directive intends to offset the situation of inequality existing between the consumer and the professional by a positive intervention, outside the mere parties to the contract. Thus, the action opened to consumer protection associations by the domestic law of each Member State must not only be repressive but must also be preventive and cover the mere recommendation of the use of such clauses in the same way as the actual use thereof . With no direct contractual link, the action of consumer associations is a matter relating to delict or quasi-delict .

The collective action of associations is by nature different from the individual action of consumers . In the latter, the courts assess in concreto the unfair character of a term contained in a contract already entered into while in the former their assessment is made in abstracto on the unfair character of a term that might be included in contracts which have not been entered into yet. Thus, Article 5 of the directive, according to which, where there is doubt about the meaning of a term, the interpretation most favorable to the consumer prevails, does not apply to collective action. In effect, in order to obtain, by way of prevention, the most favorable result for consumers as a whole, it is not necessary, where there is doubt, to interpret the term in a manner favorable to them .  National legislation may, without contravening either Directive No 93/13 or the principles of equivalence and effectiveness, provide that actions are to be brought before the courts where the defendant is established and that no appeal lies against a decision declining territorial jurisdiction handed down by a court of first instance . Further, a consumer must be permitted to bring an individual action seeking a declaration that a contractual term binding him to a seller or supplier is unfair without that action being suspended pending a final judgment concerning an ongoing collective action brought by a consumer association to prevent the use of terms similar to those at issue in that individual action . At the same time, a consumer protection organization may intervene, in the interests of the consumer, in proceedings seeking an order for payment concerning an individual consumer and lodge an objection against that order in the absence of a challenge to it by the consumer .

EU legislation does not provide for a right for consumer protection associations to intervene in individual disputes involving consumers. In accordance with the principle of procedural autonomy, it is therefore for the national legal order of each Member State to establish such rules, provided that they are not less favorable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by European Union law (principle of effectiveness). National legislation which does not allow a consumer protection association to intervene in support of a consumer in proceedings for enforcement, against the latter, of a final arbitration award is not precluded by Directive No 93/13 .

Case C-372/99 Commission v Italy [2002] ECR I-819, LawLex200900000575JBJ: "the deterrent nature and dissuasive purpose of the measures to be adopted, together with their independence from any particular dispute mean, as the Court held, that such actions may be brought even though the terms which it is sought to have prohibited have not been used in specific contracts, but have only been recommended by suppliers and sellers or their associations".

Case C-167/00 Henkel [2002] ECR I-8111, LawLex200900000666JBJ.

An action for an injunction pitting an association against a seller or supplier is not characterized by the same imbalance that is present in an individual action brought by a consumer against a seller or supplier: Case C-413/12 Asociación de Consumidores Independientes de Castilla y León, Judgment of 5 December 2013, LawLex201300001744JBJ.

Case C-70-03 Commission v Spain [2004] ECR I-7999, LawLex200900002202JBJ, which specifies that an objective interpretation thus makes it possible to prohibit more frequently the use of an unintelligible or ambiguous term, which results in wider consumer protection.

Case C-413/12 Asociación de Consumidores Independientes de Castilla y León, Judgment of 5 December 2013, LawLex201300001744JBJ.

Cases C-381/14 and C-385/14 Sales Sinués, Drame Ba v Caixabank SA, Judgment of 14 April 2016, LawLex201600000791JBJ.

Case C-448/17 EOS KSI Slovensko s.r.o., Judgment of 20 September 2018, LawLex201800001355JBJ.

Case C-470/12 Pohovost s.r.o., Judgment of 27 February 2014, LawLex201400001598JBJ.

European Business Law

219. Action by associations

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

219. Action by associations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise