The ECJ in Vapenik: on the perils of cross-interpretation in consumer law

The ECJ held in Vapenik some time ago (December 2013) however I briefly revisit the case on account of Elsemiek Apers writing a case-note on it. The case interprets Article 6(1) d of the European Enforcement Order (EEO) Regulation, Regulation 805/2004. This allows the Court faced with an uncontested claim in a consumer contract, with the consumer as debtor, to attach an enforcement order to its judgment, only if that court is the court of  the domicile of the consumer.

The Regulation does not further specify whether the creditor in this relationship has to be a ‘business person’ (sic) , acting in his commercial capacity, or whether relations between two persons, both acting in their ‘consumer’ capacity, might suffice. The long and the short of this discussion is that the EEO Regulation does not include the paraphernalia for ‘consumer contracts’ which both the Brussels I and the Rome I Regulation do include. (And which have been the subject of extensive case law – see tag ‘consumer’ on this blog). The ECJ justifiably refers to the need to interpret the EEO and the Brussels I Regulation coherently on this point. Justifiably: for both the Brussels I-Regulation and the EEO Regulation concern the same stage of conflict of laws: enforcement (with in the case of Brussels-I jurisdiction thrown in precisely to assist enforcement).

I disagree though with the Court’s reference to substantive European consumer law, in particular the Directive on unfair terms in consumer contracts. Not because it is particularly harmful in the case at issue. Rather because I do not think conflict of laws should be too polluted with substantive law considerations. (See also my approval of Kainz).  Do note that the ‘commercial’ nature of the counterparty to the contract, on which the ECJ ruled in Vapenik, is but one of many complications in consumer contracts under the Brussels I-Regulation. Further need for clarification therefore must not be ruled out (although national courts could take a lead from Vapenik and apply the Brussels I case-law mutatis mutandis).

Geert.

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