2020

DOI: https://www.doi.org/10.31178/AUBD.2020.06

Abstract:In consumer disputes, the conflict most often involves a business and a consumer who frequently fails to appear in court or appears alone, but does not effectively defend themselves. The temptation for some judges here is to come to the aid of the party who does not appear or who does not defend themselves effectively and, consequently, to apply consumer protection rules ex officio. In this regard, French and European case law has long been contradictory.

To harmonize domestic law with European law, the French legislature grants judges the power to apply the provisions of the Consumer Code ex officio through an ex officio declaration. The effectiveness of European consumer law, both for consumer protection and for market regulation, justifies the creation of an autonomous procedural law rather than the instrumentalization of ex officio appeals. In this context, it is important to examine the evolution of the recognition of this ex officio power of the judge, on the one hand, from the denial of such power to the discretion to exercise it (§ 1) and, on the other hand, the power to waive the obligation to do so (§ 2).

Keywords:consumer, professional, judge, ex officio power, European law, case law