The Right to Housing (Article 7 of the Charter) and Unfair Terms in General Conditions

Abstract

The Court of Justice of the European Union held in Kusionova (C-34/13, ECLI:EU:C:2014:2189) that ‘ the right to accommodation is a fundamental right guaranteed under Article 7 of the Charter that the referring court must take into consideration when implementing UTCD.’This is not the first CJEU decision on unfair terms and housing. The CJEU has adopted an active role in policing unfair terms to prevent that people are evicted from their homes in the financial crisis. In this paper I discuss the implications if a court must consider Article 7 of the Charter if it interprets the unfair terms directive in the case of housing. My conclusion is that the CJEU’s consideration that a national court must consider Article 7 of the CFR, has less impact than it promises at first sight. It is most likely to have an effect on the transparency test. From a number of CJEU decisions it follows that the average consumer who is reasonably well informed and reasonably observant and circumspect must be able to foresee the economic consequences of a given contract term at the time of the contract’s conclusion. Taking into account the Article 8 ECHR-case-law, it raises the question whether this is the proper yardstick in housing cases. Arguable a more vulnerable consumer should be the yardstick.