The judgment of the Paris court of May 31, 2021 n°11-19-007483 illustrates the questions of private international law confronted with the law of large and small disputes, which can arise when a French entrepreneur or (alleged) consumer decides to sue a foreign entrepreneur domiciled in a Member State of the European Union before the French courts.
See also: international chambers of commerce: https://roquefeuil.avocat.fr/international-arbitration-international-commercial-chambers-of-paris/
The French consumer (is he really?) who considers himself aggrieved by a lack of conformity of a product that he has ordered remotely from a foreign supplier can sue the said supplier before the French court and claim application of French consumer law.
Three types of private international law questions arise:
Are we really in the presence of a consumer, supposed "weak party" and deserving the application of derogatory and protective rules? What are the procedural consequences of this qualification?
Which court is actually competent territorially and according to the rate of the request? Is the call open? Is a prior attempt at conciliation necessary?
What is the applicable law? In this respect, is French consumer law applicable? To what extent?
In this case, the claimant presented himself as a consumer, and filed a claim for compensation of 4000 euros, which allowed him to seize the court
– by declaration to the registry (before the 2020 reform);
– without appointing a lawyer, in the context of oral proceedings;
– exempt the decision from the possibility of appeal; this impossibility of appeal must encourage the defendant to be extremely vigilant before a court whose competent body, the so-called “proximity” chamber or the “protection litigation” judge, pays particular attention to the weaker party;
– and obliged him to a prior conciliation (before the 2020 reform);
The recent civil procedure reform more or less replicates these threshold and rate rules (find out more: https://roquefeuil.avocat.fr/reforme-de-la-procedure-civile-le/)
The quality of consumer must be checked beforehand.
This concept varies from one country to another, and in French law the criterion according to which a consumer can only be a natural person (criterion which seems to be the minimum criterion common to all the Member States of the EU and which appears to be included in Article L217-3, and in the introductory article, of the Consumer Code) seems insufficient to exclude legal persons from the protection regimes owed to the consumer: the court thus verified that the plaintiff company had a professional activity and that its purchase was part of this activity.
French law indeed refers to an intermediate notion, other than that of “consumer”, that of “non-professional”, which also attracts the application of the protective regimes of consumer law.
However, it can be noted that this notion of "non-professional" is a French notion which, according to the very provisions of the consumer code, only triggers certain sections of the said code, and does not apply to the sale of goods. and the guarantee of conformity as referred to in said code. Indeed, article L217-3 of the consumer code refers only to the quality of “consumer” and not to that of “non-professional”:
“The provisions of this chapter [“obligation of conformity with the contract”] are applicable to the contractual relations between the seller acting within the framework of his professional or commercial activity and the buyer acting as a consumer. »
But the “consumer” is not strictly speaking a “non-professional”.
Thus the introductory article of the consumer code distinguishes: “For the application of this code, the following terms are understood to mean: – consumer: any natural person who acts for purposes that do not fall within the scope of his commercial, industrial, artisanal, liberal or agricultural activity; – non-professional: any legal person who does not act for professional purposes; – professional: any natural or legal person, public or private, who acts for purposes falling within the scope of his commercial, industrial, artisanal, liberal or agricultural activity, including when he acts in the name or on behalf of a other professional. »
At European Union level, EUDs (European Union Directive) 2011-83 and 2019/771 and all directives incorporating the concept of consumer (see for example Directive 93/13/CEE of the Council of 5 April 1993 concerning unfair terms in contracts concluded with consumers, article 2) retain only the concept of consumer according to which the consumer is a natural person who does not act for professional, liberal or commercial purposes. It is this definition which is included in the introductory article of the French Consumer Code. EU law therefore does not recognize the concept of “non-professional” specific to French law. Under EU law, either you are a consumer or you are not. Consequently, the concept of “non-professional” is in principle unenforceable against a national of another Member State. Furthermore, if it is conceivable that the application of RUE (European Union Regulation) 1215/2012, article 7, allows referral to the French judge in relations between nationals of Member States, RUE 593/2008, article 4, 1), a) does provide for the application of the law of the place of habitual residence of the seller, except in the case where a consumer is involved (article 6)(in which case the law of the country of residence of the consumer would be applicable). The question is of interest because the guarantee of conformity provided for in article L217-4 of the consumer code only applies to consumers, and provides for a more extensive guarantee of conformity than that provided for by common law. (1641 and 1642 of the Civil Code or Vienna Convention on the International Sale of Goods of 1980): Article L217-5 of the Consumer Code:"The good complies with the contract: 1° If it is suitable for the use usually expected of a similar good and, where applicable: - if it corresponds to the description given by the seller and has the qualities that the - presented to the buyer in the form of a sample or model; – if it has the qualities that a buyer can legitimately expect given the public statements made by the seller, the producer or his representative, in particular in advertising or labeling; 2° Or if it has the characteristics defined by mutual agreement by the parties or is suitable for any special use sought by the buyer, brought to the seller's attention and which the latter has accepted. » Article L217-8 of the Consumer Code: “The buyer is entitled to demand that the goods conform to the contract. He cannot, however, contest conformity by invoking a defect which he knew or could not ignore when he contracted. The same applies when the defect has its origin in the materials supplied by him. »
In Union law, it is the "Rome I" regulation 593/2008 which applies to commercial relations to determine the applicable law, and which designates, with some exceptions, the law of the seller's country. In this case, Spanish law (Spanish private international law) referred to the Vienna International Convention on the International Sale of Goods of 11 April 1980, since Spain and France are parties to the said Vienna Convention.
Contact theThe Pierre de Roquefeuil law firm in Paris
See as well :
Unfair terms, what are they? how to punish them?
The new internet regulations in preparation
Remarks on the interpretation of the contract
Are the terms and conditions still useful?
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