Today the Opinion of Advocate General Trstenjak in the Pénzügyi Lízing-case has been published. The case is a follow-up to the Pannon-case (2009), dealing with the obligation of the national court to examine on its own motion the unfairness of a term when applying the Unfair Terms Directive (93/13/EEC).
After the ECJ made clear in the Océano-case that national courts are allowed to examine the unfairness of contract terms, Mostaza Claro and Cofidis went a step further, arguing that national courts have the obligation to do so. This was repeated in Pannon, but in that case the ECJ added that the obligation exists ‘where [the national court] has available to it the legal and factual elements necessary for that task’. With this judgment it was still not entirely clear under what circumstances the obligation exists. Advocate General Trstenjak concretizes this in her Opinion in Pénzügyi Lízing.
The Member States’ governments who have submitted their opinions regarding this case to the ECJ express opposition against far-reaching European influence in their civil procedures. They are also somewhat anxious for their courts being required to examine the fairness of contract terms in each and every case brought before them (see paras. 43-54).
Trstenjak makes clear that there is no general obligation for courts to examine the unfairness of terms on their own motion. For cases in which a contract term is possibly unfair, the national court is held to examine the fairness of the term only if, in the words of Pannon, ‘the national court has available to it the legal and factual elements necessary’. Trstenjak makes clear that this is only the case if there are indications for the existence of a possibly unfair term from the arguments of the parties or from other circumstances (para. 107-109). With reference to the principle of party autonomy in the civil procedures of the Member States, Trstenjak stresses that national courts are not required to determine the legal and factual circumstances needed to conduct this examination (para .110-111, with reference to the Van Schijndel-case).
Trstenjak concludes that the national court, if confronted with a possibly unfair term, is not held to start an investigation on its own motion in order to determine the relevant factual and legal circumstances, if national procedural law only allows such an investigation if ordered by one of the parties, and if none of the parties did.
In this sense, the Opinion is a recognition of party autonomy and of the governments who fear that the courts will not be able to deal with the workload as a consequence of the obligation to examine contract terms on their own motion.
However, the degree to which national courts have to examine contract terms on their own motion is to an important extent decided by another question, i.e. what should be understood as ‘legal and factual elements necessary’. Advocate General Trstenjak does address this question along the way. While arguing that a far-reaching duty for national courts to determine the legal and factual circumstances is not necessary, she argues that national courts will often already have the ‘legal and factual elements necessary’, because they will usually have received a copy of the contract (para. 113). Hence, there is still a general obligation for the courts to examine the fairness of terms on their own motion if they have the information needed to do so (e.g. based on parties’ arguments or on the contract). But the obligation does not extend to determining the legal and factual circumstances needed for the examination.
Click here for the full Opinion (not yet available in English).