How far should courts go in reviewing compliance with EU consumer law?

Civil judges in the Netherlands are required to review, on their own initiative, whether the relevant rules of European consumer law have been complied with in a case. This is known in Dutch as 'amsthalve toetsen'. How far does this obligation extend? Professor Charlotte Pavillon investigated this question on behalf of the Council for the Judiciary.

A Very Active Role in Default Cases

Her research shows that Dutch judges in debt collection cases where consumers fail to appear in court conduct extensive reviews to determine whether companies have fulfilled their disclosure obligations. Violations are subject to severe sanctions. This approach appears to go beyond what European law strictly requires and differs from the approach taken in countries such as Belgium, France, and Italy. In a follow-up study for the Council for the Judiciary, Pavillon is conducting a comparative legal study across various EU member states to gain an even better understanding of this issue.

Practical Consequences

The extensive scrutiny in the Netherlands has practical consequences. Summonses have become more voluminous, and the processing of cases takes more time. This approach makes proceedings involving small claims relatively expensive and administratively burdensome. It also places considerable strain on the capacity of the judiciary. Furthermore, the resulting delays in debt collection proceedings entail costs for consumers.

Recommendations

In her study, Pavillon makes recommendations to adjust current practice. Among other things, it advocates for a review and statutory codification of the sanctions that judges can impose, for better coordination between civil and administrative enforcement, and for a more balanced review in cases where the consumer does not appear. It also mentions the possibility of a national, expedited procedure for uncontested claims, while maintaining effective consumer protection.

The study has been published in book form by WJS Uitgevers under the title 'Ambtshalve toetsing aan EU-consumentenrecht'.