PhD thesis defence by Dominik Dworniczak
This thesis examines whether and how, in the field of consumer credit, national supreme courts accommodate European law as interpreted by the Court of Justice, or whether they develop instead their own nationally specific case law. In doing so, it addresses a gap in European private law literature regarding the extent to which the Court’s case law is applied at the national level. The first part of the thesis consists of a general framework for case law analysis. It explains its guiding concepts: ‘legal reality,’ understood as a framework within which legal knowledge is generated and contested, and ‘ordering,’ which explains how legal reality is structured (‘ordered’), particularly in the context of unclear legal provisions and past case law. Following from this, the thesis adopts a narrative approach, inspired by historiography, to analyse selected substantive narratives in the consumer case law of the Court of Justice and national courts. The general framework is subsequently situated within the core concepts of European (private) law, with consumer credit serving as the main case study for comparative case law analysis due to its longstanding regulation and socio-economic significance.
The second part consist of a comparative analysis of consumer credit case law of the Court of Justice, the French Cour de cassation and the Polish Sad Najwyzszy. It explains that while both national courts follow a similar cassatory model of judiciary, they operate within divergent contexts, shaped by different legislative frameworks and socio-economic dynamics. Subsequently, four substantive narratives are examined: consumer, main subject matter, unfairness and transparency. The case law analysis reveals that the accommodation of the Court of Justice’s case law by national courts is far from straightforward, as might be assumed. The consumer credit case law of both supreme courts demonstrates differing timelines and approaches to accommodating the Court’s case law. For example, the concept of the consumer has generally aligned with the Court’s interpretation; however, the Court of Justice has more extensively developed the category of vulnerable consumers, while national courts have tended to focus on dishonest consumers. In contrast, significant divergences persist in the narratives on the main subject matter, despite both national courts eventually accommodating the Court’s case law. The unfairness narrative adds another layer of complexity, as ambiguities within the Court’s case law present interpretative challenges for national courts. Finally, the analysis of transparency narratives reveals that while the Cour de cassation maintained relatively lenient transparency criteria for some time, the Sad Najwyzszy adhered to the stricter approach, centred on substantive transparency, adopted by the Court of Justice. Overall, the findings point towards the need to reconsider the role of the current European judicial architecture to ensure that European consumer law is interpreted and applied in a way that consistently delivers a high level of consumer protection.
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