Judicial governance by unfair contract terms law in the EU: Proposal for a New Research Agenda for Policy and Doctrine

Abstract

The paper provides an analytical and theoretical framework on the actors and factors framing multi-layer governance in the field of unfair contract terms law in the EU, with a focus on the increasing role of private law adjudication taking place via judicial dialogue between Member State judiciaries and the Court of Justice of the European Union. The paper approaches the developments in European unfair terms law alongside the study of the interplay between the topdown and bottom-up developments that frame consumer contract fairness in Europe. It also introduces into the research a third layer with increasing importance, the horizontal judicial dialogue at Member States’ level. These processes will be reflected upon under the following structure: section 1 sets the scene of developments in judicial law on unfair contract terms and discusses the changes in the function of consumer contract fairness law under the impact of European private law. Section 2 comments on the policy, regulatory approach, codification style of Directive 93/13/EEC and the judicial methodology and tools developed by the CJEU to bind the different levels of the multi-layer governance in unfair terms law. The paper concludes in section 3 by identifying some major research questions left unsolved by judicial law and identifies a new research agenda for doctrine and policy.