Rechtsleer

Unfair Contract Terms Directive, Article 4

The authors give an in-depth analysis of the case of the ECJ regarding foreign currency-indexed loans and particularly focus on the impact of Dziubak on the court policy regarding unfair terms and consumer protection. The contribution highlights the divergent opinions in Belgian doctrine, often critical of the ECJ’s approach, about the replacement of unfair terms by making use of national supplementary or default rules. They illustrate that the ECJ further restricts the judges’ leeway excluding replacement of unfair terms with usages (equity or established customs) or general principles and indicate that in doing so the ECJ seeks a balanced approach towards party autonomy and consumer protection. Consequently, the objective approach taking into account the rights and obligations of both parties is further strengthened by the ECJ (the presumption of fairness; in other words, the legislator’s view on what constitutes a reasonable balancing of the parties’ interests). However, the ECJ also strengthens the position of the consumer emphasising that a court is not required to exclude the possibility that an unfair term may be applicable if the consumer, after having been informed of it by the court, does not intend to assert its unfair or non-binding status. The ECJ thus validates the free and informed consent to the term by the consumer, an approach which is, according to the authors, perfectly in line with the European consumer information model. The contribution further studies the impact of these evolutions in the Belgian context.