The case law of the Court of Justice of the European Union (CJEU) on the Unfair Terms Directive has extended the obligations of the national courts to take action of their own motion, so as to ensure the effective protection of consumers against unfair contract terms. Thereby the CJEU has also significantly intervened in the procedural autonomy of the Member States. Following the principles established by the CJEU in VB Pénzügyi Lízing is not problematic in cases where the assessment of the unfairness of a not individually negotiated contract term is restricted to legal questions. However, requiring the national courts also to determine the factual elements necessary for assessing the unfairness of the term (eg a comparison of the contractual liquidated damages clause to the damage likely to be caused by the breach of the consumer) would lead to unjustifiably high investigation duties of the national courts. The purpose of effective consumer protection in the European Union consumer law does not justify such a far-reaching intervention in the Member State's procedural autonomy; for example, the Estonian, German and Austrian civil procedure laws do not provide for the investigation principle in such cases. The provision of facts that are necessary for determining the (un) fairness of the term should therefore remain the task of the parties, as provided in the national procedural law. The national court can, however, make use of its procedural obligations to inform and provide explanations to the parties under its national procedural law, in order to induce the parties to prove the necessary factual elements.
Journal of European Consumer and Market Law