Last Thursday the CJEU issued another judgment confirming the need for national procedural laws to facilitate effective judicial review of unfair contract terms - Kancelaria Medius (C-495/19). Polish procedural law was closely examined in this judgment, as it mandates national courts to issue default judgments also in cases brought by traders against consumers (in the given case, the claim was for debt collection based on a concluded by the consumer credit agreement). This means that if the defendant-consumer fails to appear at court and defend their rights, after they have been duly notified of the claim, default judgments for traders should be issued based solely on the documents disclosed by traders. The court may not contest the validity of the presented documents of its own motion, unless there are 'reasonable doubts' or a risk of 'circumventing the law', which normally will not occur if the presented information is succinct (para. 16). This would prevent national court to ex officio examine unfairness of contract terms.
The referring court raised this issue following the previous case law of the CJEU in Profi Credit Polska (see our analysis here) and Aqua Med (see our analysis here). The CJEU adheres to its previous judgments in these two cases and again emphasises the need for national procedural rules not to stand in the way of ex officio assessment of unfairness of contract terms in consumer contracts (by 'adopting the measures of inquiry needed to ascertain whether a term in the contract is unfair'), where the court has doubts as to whether the terms are unfair. Only then the Member States may claim that they comply with the obligation of Article 7 UCTD to provide effective consumer protection against unfairness, by ensuring that both the principle of equivalence and of effectiveness are observed (para 32). It falls within the ambit of the dispute, and thus is not prevented by the delimitation by parties of the subject matter of an action and the principle of ne ultra petita, for the national court to require the trader to present the content of the contract, on which the application for the claim is based (in the given case - the credit agreement signed by the consumer, instead of an unsigned pr forma contract) (paras 44-45).
The CJEU suggests to Polish courts specifically to use the principle of harmonious interpretation in interpreting Polish procedural rules on default judgments, namely to broadly interpret the exceptions of 'reasonable doubts' and 'circumventing the law' to accommodate ex officio assessment of unfairness. As long as such a broad interpretation would not be contra legem, it would allow Polish law to be perceived in conformity with the UCTD (paras 48-49). If that is impossible, Polish procedural rules standing in the way of ex officio unfairness test should be disapplied (para. 51).
