Thursday, 5 September 2013

Rights and remedies - AG Mengozzi's opinion in Case C-413/12 ACICL v. Anuntis

While EU law on the one hand requires Member States to provide effective remedies for the protection of Union law (Article 19 TEU), on the other hand it shows respect for national rules of procedure that fall outside of the scope of EU competences. This raises the question how a balance should be struck between effective protection of European rights and national procedural autonomy. In the field of European consumer law, accordingly, the Court of Justice of the EU is regularly asked to assess whether national laws offer adequate means to enforce consumer protective rules. Advocate-General Mengozzi today delivered his opinion in a case of this type, namely that of the Asociación de Consumidores Independientes de Castilla y Léon (ACICL) v. Anuntis Segunda Mano SL (not yet available in English).

The case concerns a claim of the regional consumer organisation ACICL against the Anuntis company to have some of the latter's general terms and conditions (as used on its website) declared void because of their unfair nature, and to impose an injunction against Anuntis to prevent further use of these terms. In first instance, the judge in Salamanca who was presented with the dispute held he was not competent to hear the case, since the relevant rules of procedure stipulated that the claim should be brought before the competent court in the place of residence of the defendant. The judge added that this decision was open to appeal, even if the national law did not provide any rules to that effect. The court hearing the appeal considers this interpretation of Spanish law to raise the following preliminary questions:

'Does the protection afforded to the consumer under Council Directive 93/13/EEC on unfair terms in consumer contracts allow the Audiencia Provincial, as a national court of appeal, to hear and determine, in spite of the absence of any relevant domestic legal rule, the appeal brought against the decision of the court of first instance assigning to a court of the place where the defendant has its address territorial jurisdiction to hear and determine the action for an injunction brought by a consumer association of restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?

Must Articles 4, 12, 114 and 169 of the Treaty and Article 38 of the Charter of Fundamental Rights of the European Union, read in conjunction with Directive 93/13 and the case-law of the Court of Justice relating to the high level of protection of the interests of consumers, as well as to the practical effect of directives and the principles of equivalence and effectiveness, be interpreted as meaning that the court of the place where that association has its address, and not the court of the place where the defendant has its address, is to have territorial jurisdiction to hear and determine an action for an injunction against the use of unfair terms, to protect the collective or general interests of consumers and users, brought by a consumer association with restricted territorial scope, which is not associated or federated with other associations and which has a small budget and a small number of members?'

AG Mengozzi is of the opinion that the relevant procedural rules in this case survive the Court's normal 'effectiveness and equivalence' test. In casu, the test boils down to one on effectiveness only, since the equivalence of the handling of cases under EU law and under national law is not contested. As regards the effectiveness of the Spanish rules of procedure that are at stake here, the AG observes that these rules do not completely prevent ACICL's access to justice and can, therefore, not be considered to make the enforcement of EU rights 'impossible or excessively difficult'. ACICL's financial difficulties to pursue a claim in a different region are of no relevance here, according to the AG, since national rules of procedure are based on objective considerations regarding the costs of litigation rather than on subjective financial problems of litigating parties.

As regards the second question, AG Mengozzi expresses doubts concerning the CJEU's competence to rule on this point, since it will lose its practical relevance after a negative answer is given to the first question. Still, he adds that also on this matter no fundamental problems of effective protection of EU rights are to be foreseen, taking into account that EU law does not prescribe that consumer protection (including rules on jurisdiction) should be extended to consumer organisations.

Relatively little attention is paid to the national court's reference to the EU Charter of Fundamental Rights. Concerning effective remedies in EU law, legal scholarship has suggested that Article 47 of the Charter might provide a framework for improving the (individual and collective) enforcement of consumer rights. For more on this topic, I refer to one of my working papers, which contains further references to the work of, among others, Norbert Reich and Hans Micklitz.

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