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  • Print publication year: 2018
  • Online publication date: January 2019

Chapter 1 - Setting the Scene: Europeanization of Consumer Procedural Law and Judicial Protection of Union Rights

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

Summary

This chapter sets out The framework of individual legal protection of consumers With in which The ex officio doctrine is placed. The extensive European Union consumer contract law affecting cross-border and domestic transactions alike lacks a comprehensive Union consumer procedural law. This is due to The allocation of competences between The European Union and The Member States. The procedural law governing The enforcement of substantive Union consumer law is, in principle, a matter for The Member States. However, The principles of effectiveness and effective judicial protection limit Their procedural competence.

The ex officio doctrine was not provided for under any legislative instrument. Rather, it has been The result of a growing indirect Europeanization of consumer procedural law, which is understood as The impact of The principles of effectiveness and effective judicial protection upon national procedural law, applicable in litigation involving consumers. Even if The procedural rules governing The exercise of consumer rights before The courts are not harmonized, it needs to be noted, however, That The development of The ex officio doctrine occurred within a field of law (namely consumer law) marked by The extensive harmonization of rights and remedies. In essence, The genesis of The ex officio doctrine, pertaining to The respective role of The courts and The parties in litigation, relates to The effectiveness of The extensive rights and remedies provided for under secondary consumer legislation (for instance, The non-binding nature of unfair terms, The right to withdraw from a distance or off-premises contract, or The remedy of price reduction or rescission from a sales contract in case of lack of conformity of The consumer goods delivered).

As will be further analyzed in Part II, the establishment of the active court in consumer litigation signals a Europeanization of the role of the courts in consumer law proceedings predicated upon the protection of the weaker party. In a steady line of case law following the landmark ruling in Océano Grupo, the Court has elevated the protection of the weaker party into the normative justification of an active bench. From this perspective, the active consumer court could be considered as an important expression of the“ principle of the weaker party” identified by Norbert Reich as a general principle of Union civil law.

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