“As to the question of whether a court seized of a dispute concerning a contract between a seller or supplier and a consumer may determine of its own motion whether a term of the contract is unfair, it should be noted that the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge … The aim of Article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms … It follows that effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.”
Oof. In a film, gripping, dramatic music would accompany the heroine’s discovery of that text. We’d see her lips moving softly as she reads; her face would express first puzzlement, then incredulity, and at last amazement. She would look up at the hero, stammering something like: But then … this means?
Reverse shot of him, calm, intense: Right.
I’m making fun just a little here and it’s true, there is something comical in the contrast between that indigestible prose and the joy it unleashed, but one could make fun this way of almost any human endeavor in which one is not personally involved, and so mock all commitments, all enthusiasm. Étienne and Juliette have been fighting a battle the outcome of which will affect the lives of tens of thousands of individuals. For months they’ve been suffering one rout after another; they were about to admit defeat, and now Étienne has discovered the crucial move that will change the tide of battle. It’s always delightful when a petty boss bullies you, saying, That’s the way it is, tough luck, I don’t have to account to anyone, and then you discover that above him is a bigger boss, and this big boss says, You win. Not only does the ECJ contradict the Cour de cassation, it outranks it, since European Union law takes precedence over national law. Étienne knows nothing about EU law, but already he finds it wonderful. And he begins to develop the theory he expounded to us, I remember, on the morning of Juliette’s death: the higher the norm of law is set, the more generous it is and the closer it gets to the great principles that inspire the law. Rule by decree allows government to commit petty injustices, whereas the Constitution and the Declaration of the Rights of Man dwell in the ethereal space of virtue—where they proscribe such injustices. Fortunately, the Constitution and the Declaration of the Rights of Man are worth more than any decree. To make one’s creditor pay up is a right, that’s understood, but there’s also a right to live a decent life, and when one has to choose between them, the latter right can be said to spring from a higher norm of law and so carries the day. It’s the same for the landlord’s right to collect his rents and the tenant’s right to a roof over his head, and owing to the battles waged over the last ten years by judges like Étienne and Juliette, that second right is becoming “demurrable,” which in practice means superior to the first.
So. Étienne gets excited, his eyes start to shine. Juliette has told him she loves it when his eyes shine. She loves and shares his exaltation, but in their partnership it’s more or less her role to keep her feet on the ground, never to lose sight of the reality principle. And she tells him they have to think about this. Appealing to European Union law to counter national jurisprudence and enrage the Cour de cassation, well, you can always say it won’t cost a thing, but that’s not true, it might cost a great deal. Florès has been in contact with consumer associations that are engaged in protracted trench warfare with national jurisprudence on these matters. If the blitzkrieg Étienne and Juliette are busy planning were to fail, it might weaken that other long-term effort. Besides, if the ECJ tells them no, the credit companies will have a powerful new weapon to wield.
There follow feverish days of telephone calls and e-mails with Florès, and also with a professor of EU law, Bernadette Le Baut-Ferrarese, who when consulted becomes passionately interested in the question. She feels the response of the ECJ is impossible to predict but an appeal is worth a try, always remembering that it’s like a presidential pardon in the days of the death penalty: double or nothing, the last card they can play. In the end, they decide to try. Who will make the trip? Who’ll write the jugement provocateur? Any one of the three judges could have taken on the job, but it seems this is a foregone conclusion: Étienne is the one who most loves going to the front lines.
For a few months now, dossiers have been piling up on his desk relating to an unsecured loan contract offered by our old friend Cofidis and catchily named Libravou, meaning, “It’s Up to You.” The Libravou contract could be studied in schools as a perfect example of a near swindle. It’s presented as a “no-fee application for a cash account,” with the words NO FEE printed in a large font size, while the interest rate appears in teeny-tiny letters on the back of the offer and it’s 17.92 percent, which when increased by late penalties crosses the line into usury. In the pile, Étienne chooses at random the dossier into which he will slip his little bomb: Cofidis SA v. Jean-Louis Fredout. It’s not a big deal: Cofidis demands 16,310 francs, 11,398 of which are capital, the rest interest and penalties. At the hearing, M. Fredout is absent and has no lawyer. The one Cofidis has, on the other hand, is a veteran of the Vienne bar, an old hand who doesn’t grow alarmed when Étienne points out that “the financial clauses are difficult to read,” that “this lack of legibility is in contrast with the particularly noticeable mention of the no-fee offer,” and that “the financial clauses may thus be considered abusive.” The lawyer isn’t worried, he knows all Étienne’s quibbles by heart and anyway he respects him, and in a facetious but not at all aggressive tone, as if they were putting on a well-rehearsed fencing match, he replies that, even if the clauses are abusive, who cares, because the contract dates from January 1998, the suit was filed in August 2000, the statute of limitations has definitely expired, so sorry, Monsieur le Président, nice try but the law is the law, and let’s leave it at that.
Fine, says Étienne, let’s. Decision in two months. The humbler he seems, the more tickled he is inside. If it were up to him, he’d deliver his ruling next week, but everything has to seem normal, including the usual delay. The hearing concludes at six on Friday afternoon and Saturday morning he’s at his computer at home. He writes in excitement and pleasure, often laughing aloud. In two hours, he’s done: the decision is fourteen pages, unusually long. He calls up Juliette to read it to her, and she laughs gleefully as well. Then he phones Florès and Bernadette, who’s now a full member of the conspiracy. They take their time, verify everything, consider and reconsider every word. The details are quite technical, of course, but the idea can be simply stated. Étienne’s ruling will find for Fredout but maintain that he can’t hand down a definitive decision because the law is not clear, and to clarify it he must ask the ECJ a question, which is called a prejudicial question. Here’s the question: Is it consistent with the European Community directive that the national judge may not as a matter of course determine that a clause in a contract is abusive even after the statute of limitations has expired? Give me a yes or no answer, and I will rule accordingly.
This done, the conspirators bite their nails for the requisite two months, after which they send to the plaintiff, the defendant, and above all to the ECJ copies of the decision that isn’t really one because it will hinge on the answer to Étienne’s prejudicial question. Shortly afterward, Étienne runs into the Cofidis lawyer, who’s a bit disconcerted by this unidentified legal object. But that’s fine, he jokes, whatever amuses you … We’re going to lodge an appeal with the Cour de cassation, which will do its job, and by annulling the decision it will annul your question. We’ll only have lost a year, I couldn’t care less, you too, so it’s just your guy who’ll cherish fond hopes and in the end he’ll pay up all the same. Étienne has seen this coming and smiles. I don’t think, he says, that things will go like that. The Cour de
cassation itself says that only appeals based on the main issue of a suit may be heard, which excludes decisions still under advisement, and what you’ve received is a decision under advisement. The other man raises his eyebrows. You’re sure? Absolutely, replies Étienne.
Oh.
The gears start turning. In Luxembourg, they begin by having Étienne’s question translated into all the European languages and sent off to all the member states. Everyone’s free to weigh in. Six months go by. One April morning in 2001 a thick envelope from the ECJ arrives at the tribunal d’instance. Étienne is alone in his office but he does the impossible: he waits for Juliette before opening it. They ask not to be disturbed. The envelope contains two documents, one very thick—a report from Cofidis—and the other short: it’s an opinion from the European Commission, one of the important institutions—like the ECJ—of the European Union. Étienne and Juliette basically know what’s in the long document, so all the suspense hangs on the other one and that’s why, to enjoy this delicious suspenseful torment, they force themselves to read the Cofidis report first. Twenty-seven densely written pages, concocted by a squad of lawyers in crisis mode. The enemy has smelled danger and brought out the heavy artillery. The preamble immediately speaks of “an unproductive atmosphere of rebellion,” and “the revolt sparked by certain judges backed by certain unions, and even by certain members of the Syndicat de la Magistrature.” You see, observes Étienne, delighted, they always write the same way, the reactionaries, no matter what century we’re in. Next, in order of combat, come the properly judicial arguments—I’ll spare you the details—in support of the main argument, which is political: if we keep harassing credit companies and favoring borrowers in default, the entire system will take a body blow and it’s the honest borrower who will suffer the consequences. In short, nothing unexpected, aside from the vehement tone. In a different context this stuff would appear benign; as judicial prose, it’s a personal attack, with a bazooka. That’s flattering, exciting. Juliette and Étienne have read every line of the report. Now for the verdict. The European Commission is not the ECJ, it delivers an opinion, not a decision, but that opinion is generally followed and if the commission says no, the ECJ will surely say no as well. A no would mean defeat, humiliation. Étienne and Juliette would have to bear that failure; they’re not going to commit seppuku in the office, but they know they’d be devastated. You read first, says Étienne, you’re tougher than I am. Juliette starts reading. Principle of effectiveness … compensation by the judge for the ignorance of one of the parties … reference to the Barcelona decree …
She looks up with a smile: It’s yes.
It’s as if we were on a wooden bridge, says Étienne. A shaky, dangerous bridge. We’ve put one foot on it. So far, so good. Now we step out with the other.
(As I write this, I realize how bold this simile is for a one-legged man.)
Étienne doesn’t wait for the ECJ to confirm the commission’s opinion: he ups the ante by asking a second prejudicial question, which also concerns the judge’s right to challenge an injustice about which the victim has not complained, but this time Étienne tackles it from another direction. A certain M. Giner replaces M. Fredout, and the ACEA (European Automobile Manufacturers Association) replaces Cofidis, but aside from that the case is practically the same. At the hearing, Étienne observes that the overall effective rate, the TEG (taux effectif global), is not mentioned in the credit offer, which he considers irregular. No one there except Juliette is aware of the success of his first raid or suspects he is planning another. The ACEA lawyer therefore confidently offers the argument he’d prepared if the quibbler, as expected, quibbled. The nature of the irregularity, if there is one, springs from “protective public order,” which is outside the judge’s jurisdiction.
Protective public order, that’s another innovation by the Cour de cassation, which since the 1970s has distinguished it from “directive public order.” Protective public order concerns only the individual, not society. In such cases, it is up to the individual to assert his rights and the judge, who represents society, thus has no cause to take an interest there as a matter of course. Directive public order, that’s something else: it concerns the general interest and especially the organization of the market. Its violation thus can and must be challenged by the judge.
Étienne finds this distinction pathetic. I handled penal cases up north, he says, and I’m handling them again in Lyon now. It’s in the name of public order that I agree to perform the extremely unpleasant duty of locking people up. It’s in the name of public order that I agree to throw in prison thugs who’ve stolen car radios. Justice is a violent thing. I accept that violence, but on the condition that the order it serves be coherent and indivisible. The Cour de cassation says that in protecting M. Fredout and M. Giner we are only advocating on behalf of individuals who ought to be clever enough to protect themselves on their own, or too bad for them. I don’t agree. I feel that in protecting M. Fredout and M. Giner I protect all of society. In my estimation there is only a single public order.
One of the advantages of EU law, continues Étienne, is that it doesn’t just lay down rules, it also sets out the intention behind each rule, and one is therefore justified in invoking this intention. The intention behind the EU directive on the TEG was perfectly clear, and perfectly free market: to organize free competition in the credit market. That’s why the directive required that all contracts in Europe mention the TEG: so that competition would take place in complete transparency. Omitting said mention is an irregularity, there is no dispute about that, but here’s the thing: the Cour de cassation forbids me to challenge this irregularity, on the grounds that in so doing I’m dealing only with people (protective public order) and not the market (directive public order). So I’m asking the ECJ: Is the mention of the TEG there to protect the borrower or to organize the market? Since the directive plainly spells out “to organize the market,” my question is in fact even simpler: Did I read correctly? If I did read the directive correctly, Étienne concludes, the jurisprudence of the Cour de cassation makes no sense.
In hindsight, Étienne finds his Fredout brief poorly written and even a bit specious. The ECJ, in his opinion, could have rejected it, and he suspects it was approved for the wrong reasons: because the court did not want to miss a golden chance to assert its pre-eminence over national law. Étienne is very proud of the Giner decision, however. As a legal object, it delights him. First because it is not a left-wing decision. Étienne does not see himself at all as the dangerous leftist denounced by the Cofidis lawyers. He describes himself as a social democrat but believes in the virtues of competition, so it’s all the more exhilarating to trip up an ultra free market consumer credit company with its own logic, with an argument that would please a captain of industry. Above all, Étienne loves the style of the Giner decision, the contrast between the vast scope of the problem—what is public order?—and the deceptively naïve, Socratic, and confounding question that resolves it: Did I read correctly? He likes that simple and obvious way to hit the bull’s-eye. I understand him. That’s what I like in my work, too: when it’s simple, obvious, when it gets things right. And of course, when it’s effective.
Effectiveness: let’s talk about that. Before he left his post in Vienne, Étienne was able to deliver a judgment to forfeit all interest claimed by Cofidis in the Fredout case. In the Giner case, the creditor, sensing a change in the wind, preferred to drop the suit. After this double victory and above all the fact that it created jurisprudence, Juliette and Étienne were “insulted in the Dalloz,” France’s most prestigious legal journal, by law professors who described “the judge in Vienne” as a kind of public enemy number one. And that was a point of pride with them. As a result of their campaign, the law on the statute of limitations provision was changed, the duties of a judge were expanded, and the debts of tens of thousands of poor people were alleviated, entirely legally. That’s not as spectacular as, say, abolishing the death penalty but
is enough for Étienne and Juliette to tell themselves that they did some good, and even that they were great judges.
22
Étienne says he had himself transferred to Lyon as an examining judge because after eight years at the tribunal d’instance he was exhausted, and besides, he had to leave someday, so it might as well be with a victory. The lawyers of Vienne insinuate behind his back that his transfer was a punishment: he was pissing everyone off and the Ministry of Justice was tired of him. Either way, he readily admits his new job wasn’t a promotion, that Vienne was the position of a lifetime, and while he may have more prestigious posts later on, he doubts he’ll have a more exciting one.
Leaving that position meant leaving Juliette as well. Lyon is only a half-hour drive from Vienne, but they both knew that what kept their friendship alive was the daily companionship, the cases they both discussed, the opportunity to pop into each other’s offices at any moment and live together at work the way other couples live at home. After he moved, they had lunch a few times, the two families spent a few Sundays together, but the occasions were so clearly not the same that they didn’t keep that up. In the end, it didn’t matter; Étienne felt that Juliette had become so much a part of him that in his mind she was the voice of authority to whom he addressed part of his interior monologue, and he was sure it was the same for her. They phoned each other occasionally. She kept him up to date on court news, the gossip about the clerks and ushers, which he enjoyed the way children do when they daydream about being dead and listening to the chatter at their funerals. Juliette wasn’t getting along as well with his replacement, another woman, but that was normal; she and Étienne had shared something extraordinary, and such things rarely last forever. The exhilaration that had carried her through their five years of fighting against the credit companies and the Cour de cassation had subsided, leaving her tired. She worked incredible hours to keep up with her cases, going to bed at midnight, rising at five, always afraid of falling behind and never catching up. Listening to her, he could tell she was losing ground and he would have liked to be there to help her as he once had, turning even the dullest work into a satisfying challenge. He was relieved when she announced she was pregnant: now, at least, she’d have to take a break. But this pregnancy was harder than the first two. She was the one who’d decided to have a third child; Patrice had been somewhat reluctant, but she’d insisted, and it would be their last. Diane was born March 1, 2004. Étienne saw Juliette in the maternity ward, then at Rosier, with the newborn. While Amélie and Clara played at mothering their little sister, Juliette gazed intently at her three daughters, and in her eyes Étienne saw love, of course, and happiness, but something else as well that he couldn’t or wouldn’t identify, and it tore at his heart. She returned to work at the end of the August holidays; it was her second “back to court” at summer’s end without him. When they spoke on the phone, the words fatigue, weakness, exhaustion kept coming up, soon to be joined by dread, which he’d never heard her say before.
Other Lives But Mine Page 17
