Whereas the discussion of the reach of the extension of res judicata remains bound to a distinction between contract law and commercial practices, the drumbeat gives rise to immediate consequences. In full agreement with the AG, the ECJ transfers the ex officio jurisdiction in individual proceedings developed with regard to Article 6 of Directive 93/13/EEC to the extension of the res judicata rule in collective proceedings under Article 7 of Directive 93/13/EEC. Recital 43 reads (open wording):
It follows that, where the unfair nature of a term included in the GBC of consumer contracts has been recognised in an action for injunction, such as that here at issue in the main proceedings, the national courts are required, of their own motion, and also as regards the future, to draw all the consequences provided for by national law in order to ensure that consumers who have concluded a contract to which those GBC apply will not be bound by that term. [emphasis H-W M]
'Drawing the necessary consequences' in combination with 'of their own motion' must be read as an obligation imposed on national judges to investigate the potential extension of res judicata. Hence § 11 UKlaG, which requires the consumer to refer to a decision of a German court in an action for injunction where the identical contract term has been declared unfair, is destined for the wastepaper basket. Therefore after Invitel a consumer does not have to examine and judge whether the incriminated term is already the subject of a procedure concerning an action for injunction or of an identical individual procedure. It is not for the consumer to raise this objection, but for the responsible court to gain an overview ex officio. Neither the ECJ nor the AG distinguishes with regard to the extension of res judicata between decisions of lower courts or high courts. Even the consumer as a third-party beneficiary can expect the higher court to re-visit a decision of a favourable lower court decision. Therefore, an extension of binding legal force would be sensible for final judgments only.
National legislators are not only required to introduce the ex officio requirement, but also to reflect on how the court can manage the ex officio duty imposed by EU law. De facto the ECJ obliges the Member States to provide a list, which has to name the term as well as the user. Otherwise the responsible court cannot meet the parameters. Should the user of unfair terms remain hidden, as it is the case in a number of national procedural laws, the responsible court can only revert to the term, which raises complex questions about the extension of res judicata to third parties. The original proposal of Directive 2011/83/EC on the rights of consumers contained exactly such a mechanism. The suggested extension of res judicata raises complicated issues on European standards of accessibility of national judgments. There will certainly be follow-up references.
Beyond the Action for Injunction - Skimming-Off Procedures
Far less spectacular are the statements in the judgments concerning collective remedies to skim off unlawful profits. The AG and the ECJ agree that Article 7(2) of Directive 93/13/EEC does not require an elimination of the consequential effects. Conversely, the Member States are free to take this step at national level, since the Directive only provides minimum requirements for legal redress. Neither the AG nor the ECJ dealt with the meaning of the word 'prevent'. The AG restricts the sense to mean the transfer from the individual to the collective level (recital 37). The term 'prevent' could also be interpreted in a way that it is incumbent on the Member States not only to ensure the protection of third consumers, who are faced with the identical terms of the same businessman, but also to prevent once and for all further debates on the consequential effects. Such a reading would also cover the skimming off of unlawful profits. An additional support is provided by Article 47 of the EU Charter of Fundamental Rights (in the following: Charter).