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Think Global—Towards International Consumer Law

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Jules Stuyck Editor. Evelyne Terryn Editor. The objective of this consumer law casebook, like others in the Ius Commune series, is to help uncover common roots - notwithstanding differences in approach - of the European legal systems, with a view to strengthening the common legal heritage of Europe. The casebook covers the big legal families in the EU and contains judgments from the supreme courts and other courts o The objective of this consumer law casebook, like others in the Ius Commune series, is to help uncover common roots - notwithstanding differences in approach - of the European legal systems, with a view to strengthening the common legal heritage of Europe.

The casebook covers the big legal families in the EU and contains judgments from the supreme courts and other courts of the Member States.

Consumer Law Ready - How to avoid unfair commercial practices and terms

In view of the importance of EC legislation e. Furthermore, attention is paid to the way in which, when interpreting EC directives in the consumer field, the ECJ refers to concepts common to the legal systems of the Member States and how the courts of the Member States incorporate the concepts found in the directives as interpreted by the ECJ in their legal systems. The casebook also compares harmonized and pre-harmonized law, especially in the case law of the Member States.


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  • A classic problem of the application of directives is set forth in vi subchapter six, as the liability of Member States for the non-implementation of directives is also analysed. Perhaps the most relevant part of this chapter is vii subchapter seven, where the authors identify those cases when a directive is implemented more broadly than was originally requested by the EU legislative. Needless to say, the so-called spill-over effect of directives having a considerable impact on a national legal system originates from this phenomenon of voluntary broader implementation.

    Last, as viii a conclusion, the authors emphasise that improperly implemented directives still cannot be invoked in pure horizontal relationships; [5] however, a broad interpretation of the concept of Member State and the duty of harmonious interpretation may be able to bridge, at least partly, this lacuna in the judicial protection of EU citizens. Compared to Chapter 6 Chapter 7 has a simpler structure.

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    The i introduction discusses the issue of national procedural autonomy with respect the general requirements of the EU legal order the principles of equivalence and effectiveness. The EU law background of ex officio application of EU law provisions is presented in the ii next subchapter. It is widely known that article 6 and 7 of this directive paved the way for national courts to intervene on their own motion and assess contractual clauses in consumer law cases.

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    To illustrate these iii the third subchapter is dedicated to the comparative analysis of national case laws and three major patterns by which national courts try to manage the issue of the intervention of certain EU law provisions in the cases at hand are identified. However, the European Court of Justice has a certain set of exceptions, indicating that it has an empathetic view of this vital issue. Due to this, it is easy to argue that this lack of horizontal effect of directives is a key question in the protection of private law relationships, as it prohibits relying on some directive provisions if a directive is either not implemented properly in time or in affairs in which government actors are not involved.

    However, there are three potent ways to cope with this problem, at least to a limited extent. The first one is the unusually broad interpretation of the concept of Member State. The European Court of Justice confirmed that the concept of Member State cannot be limited to the body or bodies having public authority, and it can also be invoked if it acts as a public employer. As a result, as early as , a German court submitted that the conventional ways of interpretation, such as a systematic and historic approach, were trumped by this obligation to interpret national law in harmony with the provisions of a directive.

    Another important channel where directives may have an impact on national private laws is if they are intentionally applied outside their scope to other — non-harmonised — areas of law. This is the so-called spill-over effect of directives, and the extent of this impact on national private laws cannot be underestimated. This effect may occur through a voluntary broader implementation by the legislator, and this form of spontaneous harmonisation might be regarded as typical in Germany.

    This practice was also reinforced by the case-law of German courts. One may be fairly sure that similar developments have occurred in many other Member States — as for instance, when the new Hungarian Civil Code was drafted — too. As such, directives may have had a certain impact on areas of law that were not strictly under their scope. This so-called spill-over effect may also have a key role in the formation of a real ius commune europaeum, which may take a final shape in the very near future. As for ex officio application of EU law provisions by the national courts, one must point out that several, sometimes even divergent, solutions exist for the national courts to do so, even when a national procedural provision may impede this in general.

    In this way the veil of national civil procedural regimes is definitely pierced by EU law and so exhaustive national procedural autonomy is nothing more than a simple illusion in Europe although the approximation of civil procedures has not been in the focus of the legal harmonisation activities of the European Union thus far.

    This is due to the attitude of the European Court of Justice, which puts the principle of effectiveness in first place when assessing provisions of national civil procedure that may impede the application of EU consumer protection rules, with special regard to the unfair terms clause. Furthermore, the principle of equivalence is also applied to override those national procedural provisions that are part of other procedures, as for instance with the enforcement of arbitration awards or appeal procedures.

    In sum, national procedural autonomy has been considerably eroded in general by the developments in the field of ex-officio application of certain EU law provisions. As is obvious from this extensive list, both the European Court of Justice and national courts are to be regarded as key actors when shaping — or, from another angle, when narrowing — the borders of national procedural autonomy. And, undoubtedly, national procedural autonomy is under a heavy siege in those areas of law where the EU has a great bulk of substantive rules, as for instance with consumer protection or competition law.

    As for directives, Chapter 6 seems to be perfect and exhaustive. However, there is one issue really worthy of an even more detailed study.