REVIEWED DECISION (S): Council of State, section, 11 July 2001, Société des eaux du Nord
AUTHOR (S): Sauphanor-Brouillaud, Natacha
REFERENCE: La Semaine Juridique, Company edition, n ° 3, January 17, 2002, pp. 134-135
KEYWORDS: Consumer protection, unfair terms, industrial and commercial public services (SPIC), water supply, article 35 of the law of January 10, 1978, article L 132-1 of the Consumer Code
The unfair nature of a clause is assessed not only with regard to this clause itself but also taking into account all the stipulations of the contract and, when the latter has as its object the performance of a public service, particular characteristics of this service.
The disputed provisions may lead to a user being made to bear the consequences of damage which would not be attributable to him without, however, being able to establish a fault on the part of the operator. They are included, for a service provided as a monopoly, in a membership contract. They are not justified by the particular characteristics of this public service. They thus have the character of an unfair term within the meaning of the provisions of article 35 of the law of January 10, 1978. They were therefore illegal from their adoption. They also do not comply with the provisions of article L 132-1 of the Consumer Code.
On the one hand, the mere fact that a contract falls within the category of membership contracts is not sufficient to demonstrate that a particular clause was imposed by an abuse of economic power and, on the other hand, the reference to only disadvantages suffered by the insured, without comparing them with the advantages received by the insurer, does not make it possible to characterize the excessive advantage obtained by the latter.
Therefore, does not legally justify its decision with regard to Article L. 132-1 of the Consumer Code, in its drafting prior to the law of February 1, 1995, applicable in the case, a court of appeal which, to deem unwritten as being abusive a clause of an insurance contract guaranteeing, in the event of unemployment, the repayment of a mortgage, which excludes unemployment occurring after the expiration of a fixed-term employment contract, retains that the combination of this clause with that which limits the duration of the guarantee to twenty-four months, assimilates by sanctioning them in the same way the efforts made by the insured by occupying a job, even if it is precarious, during Period of guarantee,resignation from his job or his prolonged inaction and has the paradoxical consequence of preventing an unemployed person from occupying an available fixed-term job during the entire guaranteed period, which gives the insurer an excessive advantage and that in the case of an adhesion contract, the clause could not be the subject of individual negotiation and could only have been imposed by the insurer.
KEYWORDS: Membership contract – Negotiation – Abusive clauses. – Article L. 132-1 of the Consumer Code (wording prior to the law of February 1, 1995). – Abusive nature. – Appreciation. – Balance of advantages and disadvantages
REVIEWED DECISION (S): Court of Justice of the European Communities, 3 rd chamber, 22 November 2001, joined cases C-541/99 and C-542/99; Cape Snc v Idealservice Srl and Idealservice MNRE Sas v OMAI Srl
AUTHOR (S): Paisant, Gilles
REFERENCE: La Semaine Juridique, General edition, n ° 12, March 20, 2002, pp. 555-558
KEYWORDS: European Communities, consumer protection, unfair terms, article 2 (b) of Council Directive 93/13 / EEC of 5 April 1993, concept of consumer
The concept of “consumer”, as defined in Article 2 (b) of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers, must be interpreted in the sense that it is aimed exclusively at natural persons .
REVIEWED DECISION (S): Court of Justice of the European Communities 22 November 2001
AUTHOR (S): C. Rondey
REFERENCE: Le Dalloz, n ° 1, January 3, 2002, Business Law Book, Case law, Case law news p. 90
KEY WORDS: Consumer law. Abusive clauses.
The concept of consumer as defined in art. 2 (b) of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers, must be interpreted as meaning that it relates exclusively to natural persons.
Therefore, a company which has entered into a contract with another company to purchase a good or a service for the exclusive use of its own employees, totally foreign and dissociated from its typical professional and commercial activity cannot be regarded as a “consumer” in the meaning of the Unfair Causes Directive.
|REVIEWED DECISION (S): Cour de cassation, 1 st civil chamber, June 19, 2001 , SA P against Ms. P
AUTHOR (S): Paisant, Gilles
REFERENCE: La Semaine juridique, Company edition, n ° 49, 6 December 2001, pp. 1958-1960
KEYWORDS: Consumer protection, unfair terms, contract for the provision of services, limiting guarantee clause, significant imbalance between the rights and obligations of the parties, recommendation n ° 82-04 of the Unfair Terms Commission
The judgment, which notes that the disputed clause was drafted in terms likely to lead the consumer to believe that it only authorized the negotiation of the price of the service, considered exactly that by freeing the service provider from the consequences of any liability under these conditions. subject to the payment of a small sum, the disputed clause, which had the effect of creating a significant imbalance between the rights and obligations of the parties, was abusive and had to be deemed unwritten according to recommendation no.82-04 of the Commission. unfair terms.
TITLE: Application of the regulation of unfair terms to public services: concerning the Société des eaux du Nord judgment rendered by the Council of State on July 11, 2001.
AUTHOR : Amar, Jacques
REFERENCE : Dalloz, Business Law Cahier, n ° 34, October 4, 2001, pp. 2810 – 2814
KEY WORDS : Consumer law, public services, derogatory regime, community law
REVIEWED DECISION Tribunal de Grande Instance (TGI) of Paris, 8th Chamber, September 7, 1999, Association Confédération Syndicale du Cadre de Vie v Company F
Reference Recueil Dalloz Sirey , n ° 44 , 12/16/1999 , pp. 89-93,
KEYWORDS Abusive clause, trustee contract, article L. 132-1 of the Consumer Code
REVIEWED DECISION Court of Cassation, Civil Chamber number 1, UFC and others v Company P
AUTHOR (S) Paisant, Gilles
Reference JCP G Semaine Juridique (general edition) , n ° 47 , 24/11/1999 , pp. 2092-2094, Case law 10 205
KEYWORDS Abusive clauses, consumer code, article L 421-6, request for invalidity, publisher, sales agreement model, action by consumer associations, inadmissibility, sales contract concluded between non-professionals, existence of an agreement between the model editor and a consumer
REVIEWED DECISION Court of Cassation, Civil Chamber number 1, October 05, 1999, UFC 38 Federal Union of Consumers v Company E
Reference Recueil Dalloz Sirey , n ° 41 , 18/11/1999 , pp. 52-53, Business law book; Case law news
KEYWORDS Abusive clause, standard contract, deletion, legal action, consumer association, damages
REVIEWED DECISION Court of Cassation, Civil Chamber number 1, July 10, 1996, GAEC de S v Company I
AUTHOR (S) Delebecque, Philippe
Reference Recueil Dalloz Sirey , n ° 22 , 05/06/1997 , pp. 173-173
KEYWORDS Sales contract, assignment, obligation to advise, information, general conditions of sale, abusive clause, watering equipment
REVIEWED DECISION Court of Cassation, Civil Chamber number 1, January 03, 1996, Société Tourrès et Compagnie, Verreries de Graville v La ville du Havre, Water Department; Court of Cassation, Civil Chamber number 1e, January 30, 1996, SA Crédit de l’Est v Société André Bernis Latitude 5
AUTHOR (S) Leveneur, Laurent
Reference JCP E Semaine Juridique (company edition) , n ° 25 , 20/06/1996 , pp. 149-152, Case law number 830
KEYWORDS Consumption, consumer protection, unfair terms, article L. 132-1 of the Consumer Code, scope, contract for the supply of goods or services, contracts between professionals