Recunoașterea puterii din oficiu a judecătorului în litigii de consum

In: Analele Universitării din București Drept, Band 2020, Heft 2020, S. 76-90

Abstract

In consumer dispute, litigation most of the time brings together a professional and a consumer who very often does not appear or appear alone in front of the judge, but does not really defend himself. The temptation of some judges here is to come to the aid of the party who does not appear or who does not defend himself well and therefore to apply the consumer protection rules ex officio. On this point, French and European case law has long been contradictory. In order to harmonize national law with European law, the French legislator confers to the judge the power to apply ex officio the provisions of the Consumer Code by means of the ex officio statement. The effectiveness of European consumer law, both protecting consumers and regulating the market, justifies the creation of an autonomous procedural law rather than an instrumentalisation of the ex officio recording of legal remedies. In these circumstances it is important to see the evolution of the recognition of the power of the judge ex officio, on the one hand, from the denial of said power to the faculty to do so (§ 1st) and, on the other hand, the power to waive ex officio the obligation to do so (§ 2nd).