Tuesday, 15 September 2015

The Dutch Supreme Court & European contract law

Dutch-speaking readers of this blog may be interested in an article I wrote on the Dutch Supreme Court (Hoge Raad)'s handling of EU law in private legal disputes (published in Ars Aequi 2015, p 716-722). In brief, the main conclusion is twofold: On the one hand, the Court integrates EU law in Dutch private law in line with a monist (constitutionalist) perspective on the relationship between European law and national law. On the other hand, the Supreme Court seems hesitant to interfere in the system of private law laid down in the Dutch Civil Code, opting for interpretation of private law provisions in line with EU law rather than amendment of the Code.

Wednesday, 13 May 2015

Fair time limits for unfair terms control - AG Szpunar's opinion in case C-8/14 BBVA v Fernández Gabarro

The interaction between the CJEU and Spanish national judges in procedures regarding unfair terms assessment in mortgage enforcement proceedings offers a good example of judicial contributions to the fine-tuning of rules of private law. This morning, Advocate General Szpunar delivered his Opinion in the case of BBVA SA v Fernández Gabarro and others - I reproduce part of the summary I wrote for the blog on 'Recent developments in European Consumer Law' here:

The BBVA case is a follow-up to the law reform that was set in motion by the CJEU's Aziz judgment (on which we reported earlier; see also a posts on CJEU Sánchez Morcillo and CJEU Unicaja Banco). Following this judgment, Spanish procedural was changed so as to make it possible to stay mortgage enforcement proceedings while an assessment of the fairness of the contract terms governing the client/bank relationship is pending. The present case concerns the possibilities for effective judicial policing of unfair contract terms in disputes that had been brought to court before the law reform came into force and had not yet been concluded.

The question raised by the national judge is whether the time limit of 1 month for raising a claim of unfairness of the contract terms is in line with EU law. Fernández Gabarro et al, the consumers in this case, claim that it is not in accordance with the Unfair Terms Directive to impose such a time limit. Furthermore, a limit of 1 month in their view was in any case far too short to prepare a claim, given the great number of requests made to lawyers at the time the reform law came into force, which lawyers could not handle in such a short time.

AG Szpunar observes that the question essentially regards the compliance of the Spanish provision with the principles of effectiveness and equivalence (para. 26). This implies that national rules safeguarding EU rights must not be less favourable than those governing similar domestic transactions that are not subject to Union law (equivalence), nor may they be framed in such a way as to render impossible or excessively difficult the exercise of rights conferred by Union law (effectiveness).

As regards the time limit of 1 month, the AG is of the opinion that it is in compliance with EU law: although short, it gives sufficient opportunity to raise a claim against the fairness of the contract terms governing the mortgage enforcement procedure (para. 46-47).

As concerns the date on which Art. 4 took effect, however, the AG indicates several problems. This provision, stipulating the time limit of 1 month for raising unfair terms claims in pending procedures, entered into force the day after Ley 2013/1 was published. Moreover, the consumers in the present case were not informed of this. The AG expresses doubts as to whether Art. 4, thus, complies with the principle of equivalence, but observes that it is for the national judge to investigate whether similar procedural time limits apply in comparable domestic cases (para. 53).

More importantly, in the AG's opinion, several factors justify the conclusion that the time limit renders the exercise of the consumers' rights under Directive 93/13 impossible or excessively difficult (para. 54 ff). These include the facts that procedural time limits in Spanish law hardly ever take effect the day after publication of new legislation, that consumers could only have taken full benefit of the time period set in Art. 4 if they had known about the provision coming into force, and that legal representation was required for raising a claim under Art. 4. Furthermore, on the basis of previous CJEU case law, in respect of national legislation which comes within the scope of Union law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (para. 61, referring to CJEU Sopropé and Pontin) - on all of these points Art. 4 raises concerns. Consequently, the AG reaches the conclusion that a transitional provision as is at stake in the present case does not comply with the Unfair Terms Directive in light of the principle of effectiveness.

Monday, 23 March 2015

Secola conference 2015

The Society of European Contract Law (Secola) announced that the theme of its annual conference will be 'EU Charter of Fundamental Rights and European Contract Law'. 

Save the dates: the conference will take place in Oxford on 26 and 27 June 2015. 

More information is available here.

Wednesday, 21 January 2015

Unfair terms assessment in mortgage cases in line with EU law - CJEU judgment in cases Unicaja Banco and Caixabank

Today, the Court of Justice of the EU delivered its judgment in a number of joined cases (C-482/13, C-484/13, C-485/13 and C-487/13) on the judicial assessment of general terms and conditions applying to Spanish mortgage contracts, involving the Unicaja Banco and Caixabank. 

In line with Advocate-General Wahl's opinion in the case (on which I reported earlier on the blog 'Recent Developments in European Consumer Law'), the CJEU found Spanish law to be compatible with EU law, provided that certain conditions were met.

The Court ruled:

Article 6 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding a national provision under which the national court hearing mortgage enforcement proceedings is required to adjust the amounts due under a term in a mortgage-loan contract providing for default interest at a rate more than three times greater than the statutory rate in order that the amount of that interest may not exceed that threshold, provided that the application of that national provision:
–        is without prejudice to the assessment by that national court of the unfairness of such a term and
–        does not prevent that court removing that term if it were to find the latter to be ‘unfair’, within the meaning of Article 3(1) of that directive.
See also the Court's press release.

Monday, 12 January 2015

The constitutional imagination

European private law scholarship can learn a lot from European constitutional theory. Where constitutional rights and principles determine the framework within which modern societies (have) develop(ed), private legal rights and principles also form important building blocks in the architecture of transnational societies.

Hence, a reading suggestion on 'The Constitutional Imagination', by Martin Loughlin, available in the Modern Law Review and on SSRN. Its abstract reads:

'The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.'

An audio recording of Loughlin's lecture is available on the website of the London School of Economics.

Thursday, 8 January 2015

Faith in public debate

Some recommended reading on why limits to freedom of expression in respect to, inter alia, religion should be set through legislatures and courts rather than guns.

Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (OUP, 2009; including a chapter by Pascal Mbongo)

Esther Janssen, Faith in public debate (PhD thesis University of Amsterdam, 2014).

Tuesday, 6 January 2015

Looking for a PhD and post-doc

There are currently two vacancies in the research project to which this blog is affiliated: one for a PhD researcher and one for a post-doc researcher. More information is available on the website of the Centre for the Study of European Contract Law at the University of Amsterdam:

Post-doc vacancy

The deadline for applications is 30 January 2015.


Welcome to my blog on judicial law-making in European private law, which aims to present results of my new research project 'Judges in Utopia'.

The research project, which will run till November 2019, concerns the interaction among national and European judiciaries in the deliberation of value choices in private-legal disputes. All EU countries place limits on private actors’ freedom in light of the public interest. How should judges define these limits in the interplay of rules deriving from national systems and from EU law, which reflect different underlying values? In my project, a (partial) normative theory of judicial law-making in the field of European private law will be developed to give guidance for the handling of these types of cases.

On this blog you will find updates on recent case law of the Court of Justice of the European Union, the European Court of Human Rights and national courts in the field of European private law, broadly understood as the law governing transactions in the EU's internal market - these types of posts will be indicated by the label 'case law'. Furthermore, you will find references to books, articles and working papers related to the research theme - labelled as 'literature'. Further additions to the blog will be made as the project goes along.