Ignorance is Bliss - How Ex Officio Control Became the Raison d’Être of the UCTD

The impact of the Unfair Contract Terms Directive owes much to the European Court of Justice case law on the ex officio reviewing duties of national courts. The ECJ’s evolving case law has pursued a multifaceted approach in justifying its intervention in national procedural law, oscillating between the principles of effectiveness and equivalence, and emphasizing the significance of the Charter of Fundamental Rights. This diverse foundation ensures the robustness of ex officio review and allows for further expansion. Key rules for ex officio review include its mandatory nature, thresholds for initiating the review, including the court’s possession of the necessary legal and factual elements, and the requirement for courts to hear both parties. However, there are legal and practical issues that limit the effectiveness of the mechanism. Generally, defining the threshold for review and the boundaries of the dispute is problematic. In the case of default
judgments, it is unclear how far the court should go to gather relevant facts and
determine if the consumer wishes to be bound by the term. Finally, the promptness with which the principle of res judicata can be set aside in enforcement proceedings and the role of non-judicial bodies in nullifying unfair terms remain unclear.