The Supreme Court considered that the court’s unprompted duty to examine a matter is restricted in civil actions and that there are no exceptions to this main rule by virtue of the issue being related to consumer protection. Directive 93/13/EEC concerns contractual provisions which the parties have not separately negotiated. These kind of provisions are considered unreasonable if they cause a significant imbalance between the rights and obligations between the parties to the detriment of the consumer. The Member States shall also assure adequate and efficient means to cease the use of unfair contract terms in agreements between traders and consumers. The extensive duty to exam is therefore considered necessary in order to secure actual consumer protection. According to the Court of Justice of the European Union, national courts have duty ex officio to examine the unfairness of a contract term that is included into the scope of application of the Directive when the court has all the legal material and facts to be able to do so. If the case at hand is about a standard agreement that is included into the scope of application of the Directive, the court must examine the unfairness of the contract term ex officio. The court has had the right to assess the unfairness of the contract term ex officio in this matter.
According to the Consumer Protection Act, a contract term that is unfair to the consumer can be adjusted or ignored. According to the Annex of the Directive, a contract term the purpose or consequence of which is to demand compensation from the consumer who does not fulfill his or her obligations is to be considered unfair when the demand is out of proportion. In this case, the plaintiff’s demand is to be considered unfair. In addition, the plaintiff has not drawn up the conditions, to which the claim is based on, in a clear and intelligible manner. This fact supported the Supreme Court’s decision.
URL: http://korkeinoikeus.fi/sv/index/ennakkopaatokset/precedent/1442216037119.html
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