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
SUMMARY

1. Introduction - 2. Jurisdiction and arbitration clauses as unfair contract terms - 3. Duties of the court in establishing unfairness of standard term - 4. Possibility to assess the unfairness of arbitration clauses in post-judgement stage - 5. Conclusions

 
FREE EXCERPT
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 signi 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 in 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 GyQr . – 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.

To continue reading

REQUEST YOUR TRIAL