Protection of Consumers against Unfair Jurisdiction and Arbitration Clauses in Jurisprudence of the European Court of Justice

• Author: Karin Sein
• Position: Docent of Civil Law, University of Tartu
• Pages: 54-62

54 JURIDICA INTERNATIONAL XVIII/2011

Karin Sein

Docent of Civil Law

University of Tartu

Protection of Consumers

against Unfair Jurisdiction

and Arbitration Clauses

in Jurisprudence of the

European Court of Justice

1. Introduction

The jurisdiction and arbitration clauses contained in consumer contracts can signif‌i cantly limit the

constitutional right of consumers to have recourse to the courts for protecting their rights. This particularly

applies if such a clause is contained in the standard terms of the contract prepared by the other party, as a

result of which the consumer cannot inf‌l uence the substance of the contract. In such cases, the consumer

has in fact been forced to agree that the disputes arising from the contract will be settled in the arbitral

tribunal or court chosen by the seller or supplier if the consumer wishes to acquire the desired goods or

service. However, such contracts are relatively frequent in the practice of the European countries, which

has given rise to the judgements of the European Court of Justice such as Oceano Grupo*1, Mostaza Claro*2,

Asturcom*3, Pannon*4 and Pénzügyi Lízing.*5

The objective of this paper is to analyse how the European Court of Justice has sought to protect con-

sumers against the jurisdiction and arbitration clauses contained in standard terms and what duties would

arise from the above-mentioned judgements for the judges of Member States, including Estonia. The paper

demonstrates that although the European Union legislator does not have general competence to regulate

the civil proceedings of the Member States, the judgements of the European Court of Justice examined have

considerable impact on the civil proceedings of the Member States, including the principles of procedural

autonomy and the adversary principle of the parties.

1 Case 27.6.2000, joined cases C-240/98–C-244/98, Océano Grupo Editorial and Salvat Editores. – ECR 2000, p. I-4941.

2 Case 26.10.2006, C-168/05, Mostaza Claro v. Centro Móvil Milenium SL. – ECR 2006, p. I-10421.

3 Case 6.10.2009, C-40/08, Asturcom Telecomunicaciones SL v. Cristina Rodríguez Nogueira. – ECR 2009, p. I-9579.

4 Case 4.6.2009, C-243/08, Pannon GSM Zrt. v. Erzsébet Sustikné GyQrf‌i . – ECR 2009, p. I-4713.

5 Case 9.11.2010, C-137/08, Pénzügyi Lízing Zrt v. Ferenc Schneider. – OJ C 13, 15.1.2011, p. 2.