Clauses abusives, les EHPAD dans le collimateur

flickr-creativecommons-elderly-couple-golden-gate-parkpeacenik1Il ne suffit pas que les hôpitaux fassent l’objet d’un livre noir, à paraître mardi prochain. Il faut aussi que certains établissements hébergeant des personnes âgées dépendantes (EHPAD) soient mis à l’index par la Commission des clauses abusives.

Rappelons que le code de la consommation définit comme abusive la clause qui, passée entre un professionnel et un non-professionnel ou consommateur, a pour objet ou pour effet de créer, au détriment du non-professionnel ou du consommateur, un déséquilibre significatif entre les droits et obligations des parties au contrat.

Instituée par l’article L. 132-2 du code de la consommation, cette commission est placée auprès du ministre chargé de la consommation. Elle a notamment pour mission de formuler des recommandations et des avis et rend chaque année un rapport d’activité, qui figure traditionnellement au Bulletin Officiel de la Concurrence, de la Consommation et de la Répression des Fraudes (BOCCRF).

Aux termes du rapport d’activité pour l’année 2008, la commission a formulé une recommandation n°2008-02 relative aux contrats proposés par certains établissements hébergeant des personnes âgées et non habilités à recevoir des bénéficiaires de l’aide sociale. Cette recommandation ne fait qu’une page mais le constat est édifiant. De la violation des données personnelles à caractère médical au paiement d’une prestation qui n’a pas lieu, en passant par le double paiement pour une même prestation ou bien les clauses élusives de responsabilité en cas de vol, tout y passe.

Les associations de consommateurs veillent. A titre d’exemple, la jurisprudence ((CA Aix-en-Provence, 18 septembre 1995, SA Valcros c/ Union des consommateurs Que choisir, n°92/12582.)) leur a reconnu le droit de demander la suppression de certaines clauses abusives du règlement intérieur d’une maison de retraite.

Omar YAHIA

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