Protection from unfair terms and dispute resolution

Accesses to justice and protection from unfair contractual terms are further important aspects of consumer law in relation to electronic communications services. Telecommunication contracts often entail unfavourable conditions for consumers, such as early termination fees, automatic renewals of contracts, or specific arbitration terms. Although consumer actions are a useful tool to test the fairness of business practices in telecommunications contracts, consumers often have difficulties in gaining access to justice.[1]

In this regard, the EU adopted specific legislative measures. Article 34 of Directive 2009/136/EC requires Member States to ensure that ‘transparent, non-discriminatory, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings’. This will help to facilitate dispute resolution between consumers and providers of electronic communications services. As we will see in Chapter 7 on access to justice, cheap and effective alternative dispute mechanisms to judicial procedures are an important component to enhance consumer redress.

Another key measure is Directive 93/13/EEC,[2] which aims to protect consumers from unfair terms and is therefore also directly relevant in electronic communications services. On this, the ECJ has taken a protective approach, granting to consumers a high level of protection against unbalanced contracts. This is for example illustrated in Mostaza Claro v Centro Movil,[3] a Spanish case in 2006, revolving around a consumer action against a mobile-telephone company. In this case, an arbitration term had been inserted in the contract, which restricted the consumer’s access to justice. A Spanish court found that the arbitration clause constituted an unfair contractual term in relation to a Spanish law that implemented Directive 93/13/ EEC, and was, therefore, not applicable. However, as the consumer did not mention this issue in the arbitral procedure, the Spanish court asked the ECJ for a preliminary ruling, with regard to whether it could declare the arbitral clause void on its own initiative. The ECJ held that: ‘The nature and importance of the public interest underlying the protection which the Directive confers on consumers justify (...) the national court being required to assess of its own motion whether a contractual term is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier’.[4] This case thus clarified that the national courts are obliged to actively intervene ex officio to investigate and address unfair clauses, to ensure a high level of consumer protection.

  • [1] See, for more details on access to justice of consumers, ch. 7.
  • [2] Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L 95,21.4.1993, pp. 29-34.
  • [3] Case C-168/05, Elisa Maria Mostaza Claro v Centro Movil Milenium SL [2006] ECR I-10421;see more information on further recent case law regarding this issue in ch. 7 of this book.
  • [4] Case C-168/05, Elisa Maria Mostaza Claro v Centro Movil Milenium SL [2006] ECR I-10421,para 38. For a detailed analysis, see C. Liebscher ‘Case C-168/05, Elisa Maria Mostaza Claro vCentro Movil Milenium SL, judgment of the Court ofJustice (First Chamber) of October 2006 ECRI-10421’, (2008) 45 CML Rev., pp. 545-57.
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