Laborious transition after the amendment of article 202 of law 31-08 on disputes between consumers and professionals. The practitioners heckled by the recognition of the exclusive competence of the ICTs. The commercial courts declare themselves incompetent on cases ready for trial.
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Commercial courts no longer have the right to rule on disputes between consumers and professionals (suppliers). This new rule has been in force since December 2020. It is an amendment to article 202 of the law enacting consumer protection measures.
Henceforth, the courts of first instance have “exclusive competence” in the matter. Material and territorial get along. As amended, Article 202 grants jurisdiction to the CFI “to which the consumer’s domicile or place of residence or the jurisdiction of the place where the event causing the damage occurred. Between these different options, the choice remains with the consumer. Any clause inserted in contracts (eg consumer credit) comes up against the new provision which is of public order.
In recent weeks, the commercial courts have systematically declared themselves incompetent in cases where one of the parties is a consumer, noted Médias24. Very often, cases are also referred by the deciding judge to the court of first instance.
Bring ordinary courts closer together and de-clutter commercial courts
“Publicly, the argument put forward is to bring consumers closer to justice. The TPI are much more numerous than the commercial courts and are established almost everywhere in Morocco ”, explains Me Mounir Founani, lawyer at the bar of Rabat.
“For example, a consumer residing in Laayoune or Dakhla was forced to go to the commercial court of Agadir. And in the event of an appeal, he still had to turn to the Marrakech Court of Appeal. All these trips for a dispute where a bank sometimes claims 1,000 DH! The fact is that the litigant had to pay more in travel expenses, among other things. ”
In the background, “it is also a question of not drowning commercial courts in consumer affairs. With this amendment, the legislator wanted to kill two birds with one stone ”.
A modification part of good intentions. But which, in practice, destabilizes the various stakeholders. The new version of article 202 entered into force upon its publication in the official bulletin. “The text was introduced without having prepared for the transition, which turns out to be abrupt and brutal. Neither the litigants, nor their defense or even the courts were prepared in advance ”, deplores this lawyer at the bar of Fez.
According to our interlocutor, the first impacted is the one for which the text is nevertheless intended. “Today, we have grace period files that were supposed to lead to the benefit of the consumer, but where the latter was opposed to incompetence. This plea is now invoked by banks when they are defendants. “.
Files stopped in the home stretch
Treated in summary, the grace period is a fast procedure. The problem becomes more difficult for substantive cases. “Some have been in progress for over a year, going through several stages including expertise. In the end, they were the subject of a declaration of incompetence while they were in a state to be tried ”, deplores the lawyer.
Same observation on the side of the ocher city, “the judges declare themselves incompetent in cases where only the decision is missing”, affirms this lawyer at the Marrakech bar. “The situation is quite hectic. While declaring itself incompetent, the commercial court sends the file back to the TPI where we are told that nothing has been transmitted ”.
Specialist in the matter, our lawyer from Fez evokes “an obstacle to the files” which is stopped in their tracks. Not to mention “the thousands of hot potatoes thrown at the TPI without any preparation in terms of human resources, secretary-clerks and judges”.
Declutter commercial courts to burden ordinary courts? Practitioners fear this backlash which “will harm both the rights of consumers and those of professionals, particularly in terms of deadlines. Commercial courts were used to this type of business. As a result of the congestion, we can fear an extension of the deadlines at the level of the TPI, ”predicts our source.
While announcing “an explosion of files at the TPI”, Me Founani thinks that in the long term, the problem could be solved because of the high number of these courts. These “can contain the significant volume of consumer business. The load will be distributed among more than 80 jurisdictions where there are only 8 commercial courts ”.
What about banks? Some establishments have still not updated their contracts which still contain clauses conferring jurisdiction on the Commercial Court, noted Médias24. Never mind ! “They can maintain the clause. But it will not be taken into consideration in the event of a dispute. If it lands in front of a commercial court, it will declare itself incompetent, ”explains a lawyer at the Fez bar.
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