Consumer, I presume?

Consumer, I presume?

Courts are obliged to assess the fairness of contractual terms to protect a consumer, even if the consumer does not show up in court. The European Court confirmed this obligation, without a clue how courts are to know that the absent party is a consumer.

Joaquín Calderón Camino bought a car to ‘meet the needs of the household’. He was able to pay the purchase price after concluding a loan agreement for the sum of € 30,000 with Banesto. Fifteen months later, the reimbursement of 7 monthly repayments had not yet been made. Banesto went to court to demand payment of € 29,381.95, being the unpaid monthly repayments plus contractual interest and costs.

Although Mr Calderón Camino did not appear to question the fairness of the contractual terms, the Court of Sabadell, Spain, held that the term relating to the 29% rate of interest for late payment was automatically void, as part of a consumer contract, on the grounds that it was unfair. The Court of Appeal of Barcelona turned to the European Court of Justice to request a preliminary ruling. Does a national court have to assess on its own motion whether a contractual term falling within the scope of Council Directive 93/13/EEC is unfair, if the consumer has not actually lodged any objection?

In previous cases, the European Court held that national courts are required to do so at least when the legal and factual elements necessary for that task are available. How? In the context of an order for payment procedure, this is a matter for the national legal order. However, these procedures should not make it impossible or excessively difficult to exercise the rights conferred on consumers by European Union law (principle of effectiveness). In the Calderón Camino-case (14 June 2012, Case C‑618/10) the Spanish legislation in question proved to make the application of the protection which Directive 93/13 seeks to confer on those consumers, impossible or excessively difficult, in proceedings initiated by sellers or suppliers in which the absent consumers are defendants. Thus, notwithstanding the Spanish national law, the court is supposed to fulfill its obligation under European law in one way or the other.

I wonder how a court could possibly verify whether Directive 93/13 is at stake, in the event the defendant does not show up, while the claimant does not state or denies that the defendant is a consumer. How can the court know that the defendant is a consumer? EU directives define the consumer in various ways as a natural person who, in transactions covered by the directive, is acting for purposes which are outside his trade, business or profession. What about a party that is acting partly within its economic or professional activity? In the Gruber-case the European Court of Justice found that a party cannot be treated as a consumer, unless the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, negligible. Considering the normal rules on the burden of proof, it is for the potential ‘consumer’ to show that in a contract with a dual purpose the business use is only negligible, the opponent being entitled to adduce evidence to the contrary.

So, what if Mr Calderón Camino bought a car big enough for family and professional purposes? Cars, mobile telephones, coffee machines: they can all serve for private and professional purposes at the same time. It is hard to see how a court can be sure that it has all necessary legal and factual elements in its file to decide on the fairness of a contractual term. It is time to consider that defendants like Mr Calderón Camino should bear responsibility for the effectiveness of consumer protection as well.

1 Comment

Nadir Khalil

Although it is clear that the circumstances of the case are not always sufficient to decide the applicability of a particular directive, placing the responsibility for invoking its protection primarily with parties would run contrary to its goal: protecting consumers, who are less well versed in the law than corporate persons and generally do not have the same financial means.

The effectiveness of areas of law such as consumer protection and product liability therefore depends on a.judiciary that is willing and able to apply those rules of his own volition (as we would say, ambtshalve), difficult as it may be if the prospective consumer is absent or poorly represented.

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