SYNTHESIS: ARTICLE 47 IN UNFAIR TERMS CASES

A CHAMELEON-LIKE PROVISION

This book addresses the functions of references to Article 47 of the EU Charter of Fundamental Rights by the CJEU, and by Spanish and Dutch civil courts, in the context of the UCTD. European citizens all have the right to effective judicial protection of the rights and freedoms that EU law confers on them, including the rights derived from consumer protection legislation. They act in their capacities as consumers on a day-to-day basis, and enter into contracts based on standard terms and conditions. There is a wide variety of terms, and an equally wide variety of ways in which these can be unfair, possibly with far-reaching consequences, for example by imposing excessive interest rates or severely limiting procedural rights. In unfair terms cases, gaps and obstacles in national procedural laws have come to light that prevent consumers from exercising their rights vis-à-vis traders and/or prevent national courts from protecting those rights effectively. The availability of effective judicial protection is, apparently, not self-evident.

Article 47 safeguards the fundamental right to an effective remedy before an independent and impartial tribunal established by law, for everyone whose EU rights and freedoms are violated. At first sight, Article 47 confirms a universal maxim: where there is a right, there must be a remedy – a means of recourse to enforce the right, or to obtain redress for an infringement of the right. Its application in practice, however, is more ambiguous. This book paints a picture of Article 47 as a chameleonlike provision, corresponding to a mosaic of functions that it may fulfil, in the context of the UCTD. It is multifaceted, and the analysed case law shows that its implications are influenced by the applicable factual, legal and national contexts. How it manifests itself depends, inter alia, on the (substantive and procedural) rights it is pertaining to, and the national setting in which it is being applied. This book seeks to answer the question of how and why courts make references to Article 47 in unfair terms cases. What can such references achieve?

In this chapter, three key findings will be presented. Firstly, there is a discrepancy between the wide ramifications that Article 47 could, in theory, have, and its application in practice (section 6.2). Different views have been expressed on the (added) value of effective judicial protection as an EU fundamental right, ranging from cautionary or dismissive to optimistic and hopeful.