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.

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.

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).

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:

PhD vacancy

Post-doc vacancy

The deadline for applications is 30 January 2015.

Welcome

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.