LConsumer law is based on the observation that the consumer is in a position of inferiority (legal and economic) in relation to the professional with whom he contracts. It therefore contains provisions that are more favorable to this party deemed to be weaker than ordinary contract law.
It remains to be seen who can benefit from it: is the doctor who makes a hotel reservation with a view to attending a medical congress a “consumer” or a “professional”? This is the question posed by the following case.
On September 11, 2017, Mr. X, a neurologist, reserves a room by telephone at the Boutique Hotel in Bordeaux, in order to stay there, with his wife, during a neurology congress. Alas, the day before the congress, he was hospitalized. When his wife asks for the refund of the price of the room (1,496 euros), the hotel opposes the clause of his contract which excludes any reimbursement in the event of cancellation.
Mr. X therefore takes legal action. He asserts that this clause – of which he only became aware after booking, which constitutes a “lack of prior information” – must be discarded: it is abusive under the Consumer Code (article L 212-1), in that it creates a significant imbalance to its detriment.
other professionals
The society calm, who manages the hotel, then maintains that Mr. X cannot invoke the consumer code, because he is not a consumer. This is in fact defined in L’introductory article of the Consumer Code, as a natural person who does not act ” in the framework of “ of his professional activity. However, she argues, Mr. X only rented the room because a conference concerning his medical specialty was to take place, regardless of whether or not he had to be accompanied by his wife. The court follows her and judges, the November 23, 2020, that he cannot claim the status of consumer.
Mr. X is appealing in cassation, arguing that his participation in the congress does not make him a professional vis-à-vis the hotel. The Advocate General of the court considers that his request must be rejected, in the light of the case law of the Court of Justice of the European Union, according to which the concept of consumer must be interpreted in a manner “ restrictive “.
It is not followed: the court, meeting in a section formation of ten magistrates (and not in a restricted formation of three), judge, in fact, on August 31 (2022, 21-11.097)that“by subscribing to the disputed accommodation contract, Mr. X was not acting for purposes falling within the scope of his professional activity”. It breaks the judgment and sends the parties back to the Pau court, which can retry the case and dismiss the disputed clause.
How to understand the judgment, lapidary, of the court? “The doctor who rents a room is not acting within the framework of his professional activity, which consists in treating, esteem Me Thomas Lyon-Caen, MX lawyer Moreover, when he books himself, without going through a professional central intermediary, he finds himself in the position of an ordinary consumer vis-à-vis the hotelier. » The judgment could therefore concern other professionals (representatives of SMEs, farmers, etc.) who organize their business trips themselves.