Procedural Aspects of European Consumer Protection Law and the Case Law of the CJEU from the Perspective of Insurance Law

Abstract

Questions about the necessity to introduce uniform European consumer protection instruments in national procedural law count among the most divisive topics of contemporary consumer protection law. Thus, even though several European Union (EU) acts contain procedural provisions on the protection of consumers, the introduction of new procedural and remedial tools in this area of law remains controversial, as the Commission's initiatives on collective redress mechanisms clearly show. Against this background, the case law of the Court of Justice of the European Union (CJEU) plays a double role. On the one hand, the CJEU rules on the interpretation and the application of existing procedural consumer protection provisions of EU law, such as the provisions of the Brussels I Regulation on consumer contracts, which were interpreted in Pammer and Hotel Alpenhof. On the other hand, the CJEU has developed a significant line of case law on the duties of national courts and tribunals in cases concerning the judicial enforcement of individuals' rights derived from the consumer protection directives. This case law, which started with Océano Grupo and culminated in VB Pénzügyi Lízing, can entail far-reaching duties for national courts and tribunals to take positive action in order to support consumers in their legal proceedings aimed at the enforcement of their rights. Nevertheless, as the ruling in Banco Español de Crédito has again made clear, it would be premature to analyse this line of case law of the CJEU as a one-way evolution towards an ever deeper intrusion in the procedural law systems of the Member States.

Public and Private Enforcement in the Field of Unfair Contract Terms

“…It must be distinguished from the more moderate obligation to investigate ex officio whether a contract termthat falls under the scope of the UCTD -is actually unfair, which is dependent on the availability to the court of all legal and factual elements necessary for that task. 55…”