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PART I - THE DOCTRINE OF THE ACTIVE CONSUMER COURT IN CONTEXT

Published online by Cambridge University Press:  31 January 2019

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Summary

Part I introduces the thesis of the establishment of a doctrine of an active court in European consumer law proceedings, tracing its origins in Union constitutional law and, more particularly, in the effective judicial protection of Union law rights (Chapter 1), and in the application of Union law by national courts of their own motion (Chapter 2). Moreover, this part presents a selective perspective of three national jurisdictions on the respective role of the courts and the parties with regard to pleas in law in general and Union law in particular (Chapter 3). The argument towards which it points – an argument that will be taken up further particularly in Part II of this volume – is that the procedural protection of consumers in their individual capacity in domestic litigation has been Europeanized and considerably strengthened by a specific line of case law of the Court of Justice of the European Union (hereinafter“ the Court ”). The case law of the Court on the powers of the courts to raise certain mandatory rules of consumer law of their own motion was generated in the context of reference for preliminary ruling (Article 267 of the Treaty on the Functioning of the European Union (TFEU). The doctrine is therefore to be attributed to the Union courts, meaning the Court and the national courts in their function as Union courts. It is well established that the judicial dialogue is the prime feature of the judicial system of the Union 18 which, as the President of the Court Koen Lenaerts puts it,“ hinges on [an] interlocking system of jurisdiction[s].” In the same vein, the former President of the Court, Vassilios Skouris, points out that Union law, despite its autonomous character, is“ anchored in national legal orders and draws, to a large extent, its inspiration from those orders ”. In the particular field of consumer ex officio case law, we may observe that national jurisdictions have been particularly active in prompting the Union law question (among which, most prominently, the Spanish and the French but also the Hungarian, the Dutch, the Slovakian and the Romanian jurisdictions). In the field of consumer contract law, national courts fully assume their competence as Union law judges.

Type
Chapter
Information
The Active Role of Courts in Consumer Litigation
Applying EU Law of the National Courts’ Own Motion
, pp. 7 - 8
Publisher: Intersentia
Print publication year: 2018

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