The effects of abstract review of contract clauses – the resolution of the Supreme Court (III CZP 17/15)

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In the resolution of seven judges of 20 November 2015 (III CZP 17/15) the Supreme Court faced the question of the precise scope of erga omnes effect of in abstracto abusiveness of contract clauses. Under Art. 47943 of the Code of Civil Procedure the judgment that declares abusiveness of a clause is “effective towards third persons”, from the day of listing this clause in the public register administered by the President of the Office of Protection of Competition and Consumers. Although the provisions in question have been repelled from the Polish legal system in April 2016 (and replaced with in abstracto administrative review of clauses), the resolution in question still have a profound significance for framing the underlying premises of abusiveness control in the EU, as well as the interplay between consumer protection and fundamental rights sphere.

The reasoning of the Supreme Court – an outline

In the resolution of seven judges of 20 November 2015 (III CZP 17/15) the Supreme Court faced the question of the precise scope of erga omnes effect of contract clauses. Under Art. 47943 of the Code of Civil Procedure the judgment declaring (abstract) abusiveness of a clause is “effective towards third persons”, from the day of listing this clause in the public register administered by the President of the Office of Protection of Competition and Consumers. Though, especially in the light of the the CJEU Invitel decision (C-472/10) the provision in question might have extended ratione personae on every consumer, it was still disputable, whether “in abstracto” abusiveness may act against all the business parties that use the same or similar clause.

In the motives of the resolution the Supreme Court weighted two values, contradicting each other with respect to this provision – determining thereby the scope of res iudicata in the “abstract” review of contract clauses. The values reconciled by the Court have been effectiveness of consumer protection from abusive clauses and the right to fair trial. The first of them has been derived by the Court directly from the directive 93/13/EU, as well as by reference to the Invitel case. The latter has been based by the Court on three provisions declaring this right explicitly: art. 45 of the Constitution of the Republic of Poland, art. 6 section 1 of the ECHR and the art. 47 section 2 of the CFREU.

As has been ascertained by the Supreme Court, “effectiveness of the judgment in question in favour of anyone, but with respect to the particular entrepreneur, being a defendant in the proceedings, is proportionate, as it allows to maintain balance between a need of guaranteeing effectiveness of an abstract control [of contract clauses] and the need to respect the right to be heard, as a fundamental element of the right to fair trial, arising from the right to due process.”

In the outcome, the Supreme Court interpreted the notion of “effectiveness towards third persons” (art. 47943 of the Code of Civil Proceedings) as referring to the particular entrepreneur only (who took part in the abstract review proceedings) – at the same time, however, may be invoked by every consumer (also the one who did not participate in the trial). Moreover, the Supreme Court found this outcome proportionate (and compliant therefore with the requirement of proportionality of remedies set forth in the 93/13/EU directive).

The case did not involve any direct constitutionality review. The Supreme Court applied, however, the “pro-constitutional” interpretation of the domestic provision, safeguarding thereby its compliance with the Polish Constitution. This effect has been achieved by applying the reasoning related to fundamental rights – based upon the constitutional right to fair trial.

The relevance of Invitel    

The Court referred to the Invitel case (as one of the main points of reference in the resolution), concluding that the ECJ approved explicitly that a judgment declaring a clause abusive should be effective “in favour” of every consumer. At the same time, however, as has been pointed out by the Supreme Court in the resolution, the ECJ did not give in its decision any direct hints as to the effects of this judgment “against” the entrepreneurs.

 As has been pointed out in the Invitel case, the judicial declaration of abusiveness may be effective erga omnes with respect to consumers (allowing every of them to benefit from abusiveness, even if they did not participate in the proceedings resulting in declaration thereof).

Due to the findings of the Supreme Court, the Invitel case does not indicate conclusively, if the same erga omnes efficacy can be applicable also to the entrepreneurs – i.e. whether also every of them (regardless of taking part in the court proceedings) should be legally prohibited from using the same term (or a term of the similar meaning). Upon this background the Supreme Court supplemented the findings made in Invitel, defining the array of effects of an “abstract” declaration of abusiveness with respect to entrepreneurs – founding its conclusions upon a fundamental right (guaranteed simultaneously by the national Constitution, the ECHR and the CFREU).

The Supreme Court initiated thus a discourse with the Invitel case, using it for two main purposes. First of all, it clarified the point made by ECJ (which ascertained the scope of effectiveness “in favour” of the consumers). Secondly, it identified a lacuna in the ECJ conclusions (lack of determining the issue in terms of effectiveness “against” entrepreneurs) – supplementing it with respect to the constitutional right to fair trial. Therefore, the Supreme Court’s reasoning is both approving the ECJ opinion and, parallelly, clarifying it with respect to the questions not discussed in the Invitel judgment.

            The parallel preliminary question to the CJEU (C-119/15)

The question asked to the Supreme Court by its First President, has been preceded by a preliminary reference to the CJEU by the Court of Appeals in Warsaw (19.11.2014). The subject matter of this question overlaps predominantly with the resolution of 20.11.2015. The case is being decided by CJEU as C-119/15 (Biuro podróży Partner). The CJEU has not issued its decision yet – however, as might be assumed, the resolution of the Supreme Court of 20.11.2015 will be a substantial point of reference in this respect. In the opinion of 2 June 2016 the Advocate General Henrik Saugmandsgaard Øe came to the conclusions generally complaint with the III CZP 17/15 resolution – opting for the limited erga omnes effect with respect to entrepreneurs using standard contract terms. The case is pending.

The text is an outcome of the project “Active Charter Training through Interaction of National Experiences” (ACTIONES), managed by the Centre for Judicial Cooperation (European University Institute, Florence) and supported by the European Commission, DG Justice.

Posted on by Mateusz Grochowski in Civil Procedure, Consumer Law

About the author

Mateusz Grochowski
Mateusz Grochowski

Ph.D., assistant professor in the Institute of Legal Studies of the Polish Academy of Sciences and in the Institute of Justice, assistant in the Civil Chamber of the Supreme Court of the Republic of Poland, holder of scholarships of the Foundation for Polish Science and of the National Science Centre, previously visiting scholar at the Università degli Studi di Trento.