This article
investigates how the Unfair Terms Directive (UTD) attempts to improve the
quality of consumer choice through establishing the extended choice mechanism.
The article consists of three parts: analytical, interpretive, and doctrinal.
The analytical part explains how the ex post control of contract terms provides
consumers with an opportunity to rethink their original, poor-quality choice,
and to eventually make a subsequent, exonerating choice. This fiction of a
uniform, high-quality choice is established by the so-called extended choice
mechanism. The interpretive part of the article elucidates the normative
principle underlying the extended choice mechanism. The article argues that consumer
law considers choices as intrinsically valuable expressions of personal
autonomy. Therefore, it posits that the judicial control of standard form
contracts, and EU consumer law more generally, is guided by the principle of
consumer autonomy. The article thus opposes the welfarist view, according to
which choices are valuable instrumentally as tools of maximizing efficiency, or
facilitating the European Union (EU) internal market. The doctrinal part of the
article substantiates its analytical and interpretive arguments. It covers
fundamental strands of the Court of Justice of the European Union case law
concerning unfair terms: the consequences of removing unfair terms from
consumer contracts, the transparency requirement and the ex officio doctrine.
Despite its local focus, the article’s conclusions are more general, since
factors that undermine the quality of consumer choice – and regulations
addressing them – are similar around the world.