Thursday, 17 May 2018

CJEU judgment on ex officio control of unfair terms in Belgium

Today the EU Court of Justice gave judgment in a Belgian case we have reported earlier on this blog: Karel de Grote-Hogeschool v. Suzan Kuijpers (C-147/16). The case concerned a repayment scheme between a student and an educational institution in Belgium regarding tuition. When the student failed to meet her payment obligations, the institution brought a claim against her before the peace court in Antwerp. The student did not appear in the proceedings and did not have legal representation.

The referring court wanted to know if it could examine ex officio whether the contract fell within the scope of the Unfair Terms Directive (and, consequently, whether it contained unfair terms). The CJEU's answer to this question is - unsurprisingly - positive. Moreover, the concept of 'seller' has a wide meaning and includes the educational institution insofar as it provides a service that is complementary and ancillary to its educational activities. The CJEU reiterates that

"(...) it must be borne in mind, as the Court has consistently held, that when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of Directive 93/13 in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (see, by analogy, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 79 and the case-law cited)."

It is noteworthy that the CJEU has answered the question as to the ex officio examination to be carried out by the national court on the basis of the principle of equivalence (rather than effectiveness or the right to effective judicial protection):

"It follows that, where the national court has the power, under internal procedural rules, to examine of its own motion whether a claim is contrary to national rules of public policy, which, according to the information provided in the order for reference, is the case in the Belgian judicial system for a court giving judgment in default, it must also exercise that power for the purposes of assessing of its own motion, in the light of the criteria laid down in Directive 93/13, whether the disputed term on which the claim is based and the contract containing that term come within the scope of that directive and, if so, whether that term is unfair (see, by analogy, the judgment of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 45)." 


  1. Very important for many universities to hear that the CJEU might consider any paid services provided to students and not strictly related to educational activity as qualifiying students for consumer protection!

  2. As well as for national courts adjudicating cases between educational institutions and (former) students - they should be aware of the applicability of Directive 93/13/EEC.