Abstract
It is trite law and a common cliché reiterated in the judgments of the Court of Justice of the European Union that the economic situation of a consumer subjected to a purportedly unfair consumer contract clause is generally impertinent. This general tenet of the European regulation of unfair terms in consumer contractsis borne out particularly by Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, under which assessment of the unfair nature of a term shall not encompass an inquiry into the adequacy of the price and remuneration, on the one hand, as against the services or goodssupplies in exchange, on the other, in so far as these terms are in plain intelligible language. Despite this seemingly bold orientation towards the formal side of the unfairness assessment, efforts have been made to inject into the judicial exercise of discretion a degree of consideration of the economic standing and interests of both the consumer and the trader involved in the particular dispute at hand. This has been done primarily by reference to the “significant imbalance” requirement pursuant to Article 3(1) of the Directive. The paper reviews an extensive crosssection of judgments handed down in Polish courts based upon the Polish transposition of the Unfair Terms Directive to show that the courts have on numerous occasions ventured outside the boundaries delineated by traditional legal analysis (even beyond the flexible bounds of purposive interpretation) to scrutinize the size and gravity of the economic burden the term under scrutiny is liable to impose upon the consumer relative to its economic strength on the market.
Highlights
Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts1 precludes an inquiry into the price or remuneration of a good a service regulated by a disputed consumer contract term relative to their quality
That a court faced with a potentially unfair term could not delve into the economic consequences thereof, including its impact on the economic situation of the consumer, has become a cliché frequently reiterated by courts and commentators alike2
It was not before early 2014 that the Court of Justice of the European Union had to grapple with the problem whether the formulation “significant imbalance” allows that the costs charged to the consumer by such a term have, as regards that consumer, a significant economic impact having regard to the value of the transaction in question, or that only the effects of such a term on the rights and obligations of the consumer must be taken into consideration3
Summary
Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (hereinafter as “the Directive” or “Directive 93/13”) precludes an inquiry into the price or remuneration of a good a service regulated by a disputed consumer contract term relative to their quality. It was not before early 2014 that the Court of Justice of the European Union had to grapple with the problem whether the formulation “significant imbalance” allows that the costs charged to the consumer by such a term have, as regards that consumer, a significant economic impact having regard to the value of the transaction in question, or that only the effects of such a term on the rights and obligations of the consumer must be taken into consideration. I shall present a selection of cases decided in Polish courts where one can see clearly that the groundwork laid in the Directive has generated a judicial attitude where regard is had to the exact dimension and gravity of the economic burden a particular disputed term happens to carry
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