The ‘Ex Officio’ Doctrine of the CJEU Revisited: On the Active Role of the Courts in Unfair Contract Terms Law – Critical Remarks on the Lintner Ruling (C-551/17) of the CJEU

Abstract

The article searches for answers to whether the ex officio doc- trine as revised in the Lintner ruling of the CJEU in 2019 in response to the difficulties of Member State courts in marrying the requirements of the effective enforcement of Directive 93/13/EEC with the limits set by national civil procedural law may serve as an effective tool in providing justice to consumers. In this context, the paper will analyse the following aspects: a) What policies guide the CJEU in its answers provided to the questions referred to it by Member State courts on the obligation to act of their own motion and why no significant steps have been made in turning the ex officio doctrine into an effective judicial tool? b) Whose job is it to develop procedural rules acknowledging the procedural weakness of the consumer vis-à-vis business entities? c) What type of social justice promotes the ex officio doctrine under the Lintner ruling? d) Can the EU develop procedural rules to enhance the enforcement of Directive 93/13/EEC? After the presentation in Section 1 of the ex officio doctrine followed by a historical review of the case law of the CJEU on the obligation of the Member State courts to assess the contract term fairness of their own motion, the paper will present in Section 2 the Lintner ruling. In Section 3 the author will assess the Lintner ruling along with the questions presented above and discuss whether the answers provided by the CJEU are as ground breaking as they may seem and whether the ‘investigative’ powers conferred by this ruling onto Member State judges may enhance in practice the effectiveness of judicial enforcement.

Keywords: EU consumer law, unfair terms law, acting of own motion, ex officio, Member State procedural autonomy, social justice, regulatory gap, C-551/17 Lintner.

DOI: https://doi.org/10.3935/cyelp.19.2023.527

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Suggested citation: M Józon, ‘The “Ex Officio” Doctrine of the CJEU Revisited: On the Active Role of the Courts in Unfair Contract Terms Law – Critical Remarks on the Lintner Ruling (C-551/17) of the CJEU’ (2023) 19 CYELP 361.