1. Access to justice and effective consumer protection: the impact of article 47 CFREU
Dr. Chiara Angiolini, Law Department, University of Trento
In the framework of the EU project
“Roadmap to European effective Justice (RE-Jus): judicial training ensuring effective redress to fundamental rights violations”,
co-funded by the Justice Programme of the European Union ( )

2. Outline
Access to justice and effective consumer protection in the light of art. 47 CFREU
The project results
Looking forward…

3. Introduction
Access to justice and effective consumer protection in the light of art. 47 CFREU
The project results
Looking forward…

4. Introduction
How to ensure access to justice and effective consumer protection? Which is the impact of the art 47 CFREU?
Rights
Remedies
Substantive law (EU law,
National law)
Procedural rules
(MSs’ procedural autonomy)

5. Outline
Access to justice and effective consumer protection in the light of art. 47 CFREU
The project results
Looking forward…

6. The project results: an overview
Specific issues addressed during the project:
Ex officio powers
Effective consumer protection in cross-border cases
Collective redress and the coordination between collective and individual proceedings
Effective consumer protection between administrative and judicial enforcement
Effective proportionate and dissuasive remedies
Access to justice and effective and proportionate A.D.R. mechanisms
Effective consumer protection against violations of consumer and competition law

7. The project results: some focus
Specific issues addressed during the project:
Ex officio powers
Effective consumer protection against violations of consumer and competition law
Effective consumer protection between administrative and judicial enforcement
Collective redress and the coordination between collective and individual proceedings
Effective proportionate and dissuasive remedies
Access to justice and effective and proportionate A.D.R. mechanisms
Effective consumer protection in cross-border cases

8. The project results – Ex officio powers
Imbalance between the consumer on the one side, and the seller or supplier on the other side
Effective consumer protection
Procedural rules must not make in practice impossible or excessively difficult to exercise rights conferred by EU law (Procedural autonomy influenced by effective consumer protection )
Expansion of ex officio powers (Oceano case, C-240/98 to C-244/98 et al.)

9. The project results – Ex officio powers
Consumer status
Faber (C-497/13)
Unfair contractual terms
Oceano case, C-240/98 to C-244/98 et al.)

10. The project results – Ex officio powers
Faber judgment (C-497/13) «The principle of effectiveness requires a national court (…) to determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification»
Which was the impact of the case on national legal systems?

11. The project results – Ex officio powers
Impact on member states – the Slovenian example Ljubljana Higher Court, , n. 664 The court ascertained the defendant as a producer in line with Consumer Protection Act, although the parties did not expressly claim that.

12. The project results – Ex officio powers
In order to ensure effective consumer protection: “The national court is required to examine, of its own motion, the unfairness of a contractual term” (Pannon case, C-243/08 et al.) AND In light of art. 47 CFREU, national courts must respect the principle of audi alteram partem (right of defence) National courts, after establishing on its own motion that a term is unfair, are required to inform the parties of that fact and to invite each of them to set out their views on that matter, with the opportunity to challenge the views of the other party (Banif Plus case, C-472/11)

13. The project results – Ex officio powers
Example: the impact of the Pannon case (C-243/08)
Hungary, Budaörs City Court
France, Cour de Cassation,
Italy, Corte di Cassazione,
CJEU Decision, C-243/08, 4 june 2009
Romania, High Court of Cassation,
Poland, Supreme Court,
Portugal, Appeal Court Guimarães,
The Netherlands, Supreme Court, , Recommendations Dutch judiciary on ex officio
Slovenia, Art. 23 CPA, Supreme Court,

14. The project results – Ex officio powers
“The national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer” (Pénzügyi case, C-137/08) Rationale: imbalance between the parties must be corrected by a positive action of the judge How this case law must be applied in domestic legal systems?

15. The project results : effective proportionate and dissuasive remedies
Unfair terms and individual redress: invalidity, interim relief and restitution remedy
Unfair terms and individual redress: invalidity and moderation/replacement of invalid terms
Unfair practices and individual redress: the role for contract invalidity
Delivery of defective goods in consumer sales and the remedies under Article 3, Consumer Sales Directive

16. The project results : effective proportionate and dissuasive remedies
In the light of the principle of effectiveness and dissuasiveness Where an unfair term is declared invalid the court cannot moderate/replace that term (Banco Español, C- 618/10; Asbeek, C-488/11; Unicaja, C-482,484, 485,487/13) except if The consumer contract cannot continue in existence after the unfair term has been deleted (Kásler case, C-26/13)

17. The project results : effective proportionate and dissuasive remedies – The impact on MSs
Hungary, Kúria, (Court of Cassation)
Hungary, Kúria,
CJEU Decision, Kásler, C-26/13
Spain, Tribunal Supremo,
Romania, ÎCCJ (Highest court),
France, Tribunals (2009, 2011) and Court of Cassation (2003)
Italy, BFA Trib. Genova, et al.
Hungary, Kúria, law unification dec, , law, 2014

18. The project results : effective proportionate and dissuasive remedies
In the light of the principle of effectiveness and proportionality Where information requirements are not included in a consumer credit contract “the agreement is deemed to be interest-free and free of charges, provided that the information covers matters which, if not included, may compromise the ability of the consumer to assess the extent of his liability” (Home Credit, C- 42/15)

19. Effective proportionate and dissuasive remedies – delivery of defective goods and remedies
Application of the principles of effective and consumer protection and proportionality:
Selection of remedies
Burden of proof
Repair and replacement Weber and Putz (C- 65/09; C- 87/09)
Faber (C-497/13)
Consumer Finance
(C-449/13)
Price reduction and termination Duarte Hueros (C- 32/12)

20. Effective proportionate and dissuasive remedies – delivery of defective goods and remedies
Art 5 dir. 1999/44: Art 5 dir 1999/44 “any lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery” Burden of proof – Faber case (C-497/13) The principle of effective consumer protection
requires that
 The consumer is not required to prove the cause of that lack of conformity or to establish that its origin is attributable to the seller;

21. Effective proportionate and dissuasive remedies – delivery of defective goods and remedies
The impact – the Italian example The seller or supplier, also after six month of delivery, must take the good in order to verify the existence of the lack of conformity. The consumer has only to give notice – and not demonstrate - to the seller or supplier the existence of the lack of conformity.
Consiglio di Stato , n. 5250
Recalling the Faber case

22. Access to justice and effective consumer protection in the light of art. 47 CFREU
Art. 47 CFREU and the effective consumer protection principle substantive and procedural changes
are promoting
Balancing the position of the parties
Shaping remedies, improving consumer protection

23. Access to justice and effective consumer protection in the light of art. 47 CFREU
Effective consumer protection and art. 47 CFREU
Rights
Procedure
Substantive rules
Procedural rules
Remedies
EU law,
National law
MSs’ Procedural autonomy

24. Outline
Access to justice and effective consumer protection in the light of art. 47 CFREU
The project results
Looking forward…

25. Looking forward…the role of the legal community
Improvement of knowledge of the principle of effective consumer protection and of art. 47 in the legal community (judges, other enforcers, lawyers)
in order to
Enhance the judicial dialogue technique
Improve the awareness on the impact of EU principles and Art. 47 CFREU on rights and remedies, using both a procedural and a substantive perspectives.

26. Looking forward…New perspectives in consumer law
Which role for our method in the face of the “New Deal for consumers”? (April 2018, European Commission) How to apply Art. 47 CFREU and principles of effective consumer protection, proportionality, dissuasiveness to new pattern of remedies? …to new collective redress mechanisms?
individual remedies for consumers in case of unfair commercial practices
Injunctive and compensatory collective redress

27. Thank you for your attention
RE-jus Team