EUPillar Easyjet v Test-Achats ASBL - 2011/RG/1202

Summary

Consumer organisation Test-achats brought an action against the airline Easyjet to contest the use of certain clauses in its general terms and conditions. The first judge partially granted this claim, agreeing with Test-achats on the unlawful character of some clauses but not others. In July 2012, Easyjet duly published new general terms and conditions on its website. However, Test-achats extends its claim on appeal to some of these new clauses which it finds unsatisfactory. In first instance, Easyjet had contested the jurisdiction of the Belgian courts, but it does not repeat this argument on appeal. Concerning the applicable law, Easyjet maintains that English law is applicable as opposed to Belgian law. The Court considers that the action brought by a consumer organisation against a corporation is non-contractual. Easyjet argued that the first judge had interpreted the concept of “competition” (Art 6(1) Rome II) too broadly, including consumer interests. Easyjet’s argument is “out of date” according to the Court. It is now widely accepted in both Belgian and European law that a competitor who violates consumer rights obtains an unfair advantage compared to economic actors who do respect these rights. Moreover, certain provisions of the Belgian Market Practices and Consumer Protection Act of 6 April 2010 are mandatory and immediately applicable, without recourse to PIL rules. Not the whole Act is concerned with matters of economic public policy, but some provisions are. According to the Court, this is clearly the case where the legislation on unfair contract terms is concerned, since these provisions are crucial to the protection of consumers within the Belgian market. The Court refers to Art 16 Rome II and decides it should apply the mandatory provisions on unfair contract terms contained in the Belgian Market Practices and Consumer Protection Act. For the sake of completeness, the Court also holds that even if these provisions were not considered as a matter of public policy, Belgian law would in any case be applicable on the basis of Arts. 4(1) and 6 Rome II. The contested general terms and conditions are made available to Belgian consumers on Easyjet’s website. It is beyond dispute that the damage – namely, the negative consequences on consumers situated in Belgium – occurs in Belgium, and not in the UK or anywhere else in the world. Short critique The Court of Appeal confirms that the Belgian Law on Market Practices and Consumer Protection is applicable, as did the first judge. While the first judge based its decision on Art. 6 Rome II Regulation (which governs the applicable law in the case of acts of unfair competition), the Court of Appeal considered the Belgian Law to contain overriding mandatory provisions which are directly applicable without recourse to the usual PIL rules. However, the Belgian Law on Market Practices and Consumer Protection is the result of the implementation of the European Directive 93/13. Therefore, the country of the defendant (in this case, the UK) must have its own equivalent provisions for consumer protection based on this directive. If the Court of Appeal still wants to apply Belgian law, it can only do so “on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by the directive, taking account in that regard of the nature and of the objective of such mandatory provisions.” (cf. ECJ, C-184/12, Unamar). In its decision – which was, admittedly, handed down before the decision of the ECJ in Unamar – the Liège Court of Appeal does not observe the standard set by the ECJ.