§5.4.2 Relevant factors for the effectiveness of remedies

When assessing the effectiveness of remedies the specificities of the procedure in question will have to be taken into account. Furthermore, the impact that particular obstacles may have on the ability of consumers to bring remedies or the effect that limited knowledge and information may have in this respect, should take into account the perspective of more vulnerable consumers. Such consumers may be particularly reluctant to use available remedies even where the contract terms used against them are clearly unfair (414). The following factors are alternative. This means that ineffectiveness of the remedy can be caused either by a single requirement, for instance high or discriminatory court fees (415), or by a combination of different requirements, e.g. a short time-limit combined with the need to take a lawyer (416) or the need to make detailed submissions (417). While most of the aspects referred to below concern procedural law, it is immaterial, in this context, whether a given factor is qualified as a matter of procedural or substantive law (418) in the relevant Member State. The list below is not exhaustive but reflects the most common examples stemming from the case law of the Court. Rules on jurisdiction The Court has stated that the right to an effective remedy applies to the rules of jurisdiction as well as to the rules of procedure (419). While Regulation (EU) No 1215/2012 (420) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters contains protective rules for consumers in relation to cross-border proceedings (421), a similar protection may not exist under national rules on jurisdiction in domestic cases. Jurisdiction rules, directly or indirectly (422), obliging consumers to bring their cases or defend themselves in courts that are some distance away from their place of residence may discourage consumers from using remedies, in particular insofar as physical presence is required in the proceedings at issue (423). Here national courts have to examine whether the distance to the court generates overly high travel costs for the consumer such as to deter him/her from entering an appearance in the proceedings brought against him/her (424). However, the fact that a certain case has to be heard not by the local court, but by a higher level court, which is further away and may require higher fees does not automatically imply an infringement of Article 7(1) UCTD (425). Furthermore, consumer organisations bringing collective proceedings are not in the same position as individual consumers regarding jurisdiction rules (426). Time limits According to settled case law, it is compatible with EU law to lay down ‘reasonable’ time-limits for bringing proceedings in the interests of legal certainty (427). Reasonable time-limits are not in themselves liable to make it virtually impossible or excessively difficult to exercise rights conferred by EU law (428). Short time-limits can be problematic already because of the little time they give to consumers to consider their options, which may often involve a legal assessment, including the need to seek legal advice. So far, the Court has considered the length of time-limits on a case-by-case basis and mainly in conjunction with other circumstances, so that there is no absolute scale as to what time-limits are reasonable and which ones are not. Thus, the Court has considered a two-month time-limit to challenge an arbitration award following its notification to be reasonable (429). In contrast, it (430) considered a 20-day time-limit to object to a payment order as ‘particularly short’, but also took into account the obligation to be represented by a lawyer and the associated fees, which may dissuade consumers from defending themselves. In relation to extrajudicial enforcement of a lien (431), the Court took into account that a sale by auction could be contested within 30 days of the notice of enforcement of the charge and that consumers had a period of three months following the public auction to take steps. Furthermore, interim measures were available to suspend or terminate the enforcement during the substantive assessment. On that basis, the Court concluded that the legislation in question did not make it excessively difficult for consumers to rely on protection under the UCTD. Concerning a transition arrangement for a new right to object to mortgage enforcement based on the unfairness of contract terms (432), the Court (433) held that the four-week period for forming opposition in relation to pending proceedings was, in principle, reasonable and proportionate (434). Nevertheless, the Court considered that the fact that the affected consumers were informed of this right only through the official journal of the Member State but not personally by the relevant court (435) created a significant risk that the time-limit would expire without the consumers' being able to exercise their rights, which infringed the effectiveness principle and thereby the UCTD (436). The Court has referred to a two-week time-limit to object to a payment order based on a promissory note as a ‘brief period’ (437). It considered this period to be particularly problematic where the defendant has to organise his defence within these two weeks by submitting all his complaints and adducing facts and evidence. The Court (438) also considered that a period of 15 days combined with the requirement to give reasons for an objection against a payment order may dissuade a consumer from using this remedy. Service The fact that the measure or decision that may be challenged is served on the consumer before the time-limit starts to run provides at least a minimum guarantee that the consumer is informed about the existence of the relevant measure of decision (439). The required standard of service may also be relevant when assessing the risk of consumers' not using available remedies, along with the information that is provided to consumers when the document is being served on them. Legal fees and obligation to take a lawyer Court fees and fees for legal advice and representation can also be, on their own, a factor deterring consumers from using remedies. Important is not only the absolute amount, but also, for instance, the ratio with the value of the claim or their discriminatory character. Lawyers' fees will have to be taken into account where consumers are formally obliged to be represented by a lawyer or where there is, at least in practice, a need to take a lawyer. Mechanisms aiming to compensate for the consumer's financial difficulties, such as legal aid, also have to be taken into account (440) and may at least reduce the impact of fees. The Court (441) has considered that the obligation to be represented by a lawyer for cases exceeding a value of EUR 900 and the associated fees, as a factor which may dissuade consumers from defending themselves. The Court (442) has found that a rule under which the defendant must pay three quarters of the court fees where he lodges an objection against an order for payment, to be in itself capable of deterring a consumer from lodging an objection. Need to justify the use of the remedy The obligation to make substantial submissions regarding the legal and factual elements of the case, including evidence, when bringing a remedy, is liable to dissuade consumers from bringing a remedy, especially if this is linked to a short time-limit (443). The same applies where consumers have to indicate reasons for using the remedy for objecting to a payment order within a period of 15 days (444). Even if there is no formal obligation to take a lawyer, the need to justify the remedy may create the need to involve a lawyer, which, in light of the time needed and associated costs, as discussed above, may be an additional factor dissuading consumers from using the remedy. Availability of interim measures The Court (445) has repeatedly stressed the significance of the availability of interim measures in particular in order to halt or suspend enforcement against a consumer while the court is assessing the unfairness of relevant contract terms. Without interim measures, there is a risk that the protection against unfair contract terms comes too late and is, therefore, not effective. Interim relief is particularly important in relation to enforcement concerning the consumer's home (446), involving evictions, but is relevant also for other enforcement measures. The Court (447) has summarised the legal position as follows: ‘44 […]the Court has also held that the legislation of a Member State does not comply with Directive 93/13 where, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, did not permit the court before which declaratory proceedings had been brought, which had jurisdiction to assess the unfairness of such a term, to grant interim relief, including, in particular, the staying of those enforcement proceedings […] (448). 45 Finally, the Court has ruled as being contrary to Directive 93/13, national legislation which does not allow the court responsible for the enforcement, in mortgage enforcement proceedings, either to assess of its own motion or at the consumer's request, the unfairness of a term contained in the contract which gives rise to the debt claimed and which constitutes the basis of the right to enforcement, or to grant interim relief capable of staying or terminating the mortgage enforcement proceedings, where such relief is necessary to ensure the full effectiveness of the final decision of the court hearing the declaratory proceedings before which the consumer argues that that term is unfair[…] (449).’ Interim measures can be essential not only to suspend enforcement against consumers, but also in cases where consumers take legal action to request a declaration of invalidity of certain contract terms (450). Article 7(1) may also require that national courts must have the possibility to grant interim relief of their own motion, where — the grant of such relief is necessary in order to ensure the full effectiveness of a later judgment involving unfair contract terms — and where there is a significant risk that consumers will not request interim measures (451). Finally, not only the complete absence of interim measures may infringe the effectiveness of remedies, but also the fact that it is difficult for consumers to obtain interim relief in light of, for instance, tight time-limits, submissions to be made or securities or evidence to be provided. Lack of knowledge and information Consumers will often be unaware of their rights or may not appreciate the extent of their rights, or may find it difficult to assess the legal situation because of the limited information provided to them, for instance, in a payment order which they may oppose (452). Lack of knowledge or limited information can create the risk that consumers will not use available remedies (453). The Court confirmed (454) that the information provided to consumers in the decision that may be challenged or in connection with it is vital. This will include information on the fact that the act can be challenged, as well as on what grounds it can be challenged and in what form, and on the relevant time-limit. Furthermore, limited information on the substance of the claim may make it difficult for consumers to judge the chances of success when challenging certain acts, such as payment orders. It is not impossible either that, depending on its content, the information provided to consumers can dissuade consumers from using the available remedies. So far, the Court (455) has given only a few indications as to how a significant risk that consumers will not bring remedies based on lack of knowledge or information can be established. In any event, the examination of this risk will have to take into account the typical situation of consumers, including vulnerable consumers, in the type of procedure in question. Res judicata and limitation periods in general Like time-limits, limitation periods and the rules on the finality of decisions of courts or other bodies (res judicata) are linked to the principle of legal certainty. While both limitation periods and res judicata are legal obstacles for bringing proceedings, res judicata may also have the effect that a court is prevented from (re-)considering certain questions of substantive law, including at the appeal or enforcement stage, whether on the request of a party or of the court's own motion. Despite the fact that res judicata and limitation periods may, in some circumstances, be at odds with ‘material justice’, the Court has recognised the value of legal certainty in the legal order of the Union and the Member States. On this basis, the Court (456) has confirmed that the effectiveness of consumer law does not, in principle, require setting aside the domestic rules on res judicata and reasonable time-limits, including limitation periods: ‘68 […] it is true that the Court has also recognised that consumer protection is not absolute. In particular, it has ruled to the effect that EU law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13 […] (457). 69 Likewise, the Court has previously held that in the interests of legal certainty it is compatible with EU law to lay down reasonable time-limits for bringing proceedings […] (458). 70 Nevertheless, the application of a procedural rule, such as a reasonable limitation period, is to be distinguished from a temporal limitation of the effects of an interpretation of a rule of EU law. […]’ Res judicata In light of these findings of the Court, the principle of res judicata will generally prevail in cases that have been completed by a final court decision which can no longer be challenged. This applies even if that decision infringed the UCTD and/or where the jurisprudence on the assessment of a specific type of contract term has changed. However, it is still necessary to examine whether the specific res judicata rule in question disproportionately or excessively limits remedies or prevents ex officio control in relation to the unfairness of contract terms. As explained under Section 5.4.1, a national rule on res judicata will not be compatible with the effectiveness principle where it prevents ex officio control of contract terms before a claim is enforced against a consumer while there are no effective remedies or there is a significant risk that consumers will not use the available remedies (459). Likewise, the Court (460) has ruled that, if a court has examined only some relevant contract terms, res judicata cannot prevent the assessment of additional contract terms at a later stage, whether at the consumer's request or of the court's own motion: ‘Thus, in the case where, in a previous examination of a contract in dispute which led to the adoption of a decision which has become res judicata, the national court limited itself to examining of its own motion, with regard to Directive 93/13, one or certain terms of that contract, that directive requires a national court, […], before which a consumer has properly lodged an objection to enforcement proceedings, to assess, at the request of the parties or of its own motion where it is in possession of the legal and factual elements necessary for that purpose, the potential unfairness of other terms of that contract. In the absence of such a review, consumer protection would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13 […] (461).’ Furthermore, as discussed in Section 5.3.1, courts may be obliged to assess the unfairness of contract terms of their own motion under the equivalence principle (462) where national rules of procedure empower the courts to examine matters of public policy despite an otherwise applicable res judicata rule. Limitation periods As stated above, the Court (463), in principle, considers reasonable limitation periods to be acceptable in the interests of legal certainty, for instance, in relation to claims for reimbursement of overpaid amounts based on unfair contract terms. So far, the Court has not decided what would constitute a reasonable limitation period in that respect and has not ruled on its starting point. However, the Court has been asked to provide guidance on the latter aspect (464). A distinction has to be made between limitation periods laid down in law and the temporal limitation of the effects of a court's ruling on the unfairness of a contract term and the associated consequences (465), such as the entitlement of consumers to reimbursement (466), such temporal limitation being inadmissible (467). In any event, as stated in Section 4.2, the non-binding character of unfair contract terms cannot in itself be subject to limitation periods. This implies that consumers can always rely on this protection when confronted with claims from sellers or suppliers based on unfair contract terms, either by invoking unfairness themselves or by way of ex officio control, without being time-barred (468). The same must apply to requests to declare contract terms unfair in individual proceedings or injunctions within the meaning of Article 7(2) UCTD.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07