Case summary

Deciding Body
Supreme Court
Hoge Raad
National case details
Date of decision: 12.07.19
Registration ID: 19/01115
Instance: Cassation (review)
Case status: Pending
Area of law
Consumer protection
Unfair terms

Safeguards for access to justice
Right to access a court, Right to an effective remedy before a tribunal
Relevant principles applied
In judicial dialogue
Judgement of the CJEU (Grand Chamber), 9 November 2010, Case C-137/08 VB Pénzügyi Lízing Zrt. v Ferenc Schneider

Identification of the case

Fundamental rights involved
  • Right to an effective remedy and to a fair trial (art. 47 CFREU)
National law sources
  • art. 6:231 BW
  • art. 1063 Rv
EU law sources
  • Directive 93/13

Summary of the case

Facts of the case

The applicant, Stichting Intermaris, sought to enforce an arbitral award against the respondent, who is assumed to be a consumer. The arbitral award concerned unpaid rent by the respondent to the applicant. The arbitral award was issued by Stichting Arbitrage Rechtspraak Nederland (StAR) in favour of the applicant. The respondent did not appear at the arbitration proceedings and was thus tried in absentia. The preliminary relief judge put several prejudicial questions forward to the Supreme Court, which concerned the duty on a national judge to apply consumer protection measures which stemmed from national law and Directive 93/13 ex officio in its decision to enforce the arbitral award. According to article 1063 Rv, a national judge can invalidate an arbitral award on the basis that it is contrary to public order. Finally, there was a clause in the original contract between the applicant and the respondent which gave the respondent a month to choose to resolve the dispute before a court, rather than an arbitral tribunal.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Prejudicial questions by Rechtbank Amsterdam to the Supreme Court, the Supreme Court clarified the questions and sent the case back to Rechtbank Amsterdam.

Reasoning (legal principles applied)

Firstly, the judge at first instance considered that, citing the CJEU’s reasoning in Pannon, any arbitral award made without taking due consideration of Directive 93/13 is contrary to public order, which allows the national judge to invalidate the award using article 1063 Rv. Thus, the judge accepts that there is jurisdiction to consider consumer protection, however, it is uncertain to what extent the judge should acertain ex officio that consumer protection rules under the Directive have been breached.

The Court considers that the relationship between the narrow judicial review afforded to courts when enforcing arbitral awards and the duty for a national judge to apply consumer protection rules ex officio has not been defined in law. The Court cites the CJEU’s decision in Pohotovost in determining that Directive 93/13 imposes an obligation on the national judge to ascertain an unfair term within the meaning of the Directive ex officio, if he is given this power under national law. The Court considers that, under national law, the judge has limited grounds for setting aside an arbitral award. These grounds include an invalid arbitration agreement and if the manner of the arbitral proceedings is contrary to public policy (art. 1065(1) Rv). The Court concludes that, if the judge finds that the arbitration clause should not bind the consumer, the arbitral award can be set aside as being invalid. The Court finds, in accordance with the principle of effectiveness, if national law allows the judge to test an arbitral award because it breaches public policy, he must also be able to test the award if he suspects that it is an unfair term within the meaning of Directive 93/13.

Following from the above, the Court concludes that if the judge has the relevant facts to ascertain that the arbitration clause is unfair under Directive 93/13, he must investigate this ex officio. Furthermore, referring to the CJEU’s decision in Pénzügyi, if the relevant facts are not available to the judge, he may order measures of his own motion if national law permits it. The Court considers that, despite the limited inquiry allowed in art. 1063(1) Rv, art. 22 Rv allows the judge to ask the appellant to explain the relevant facts and circumstances and submit the relevant documents. This applies even if the respondent has not shown up to proceedings and he is tried in absentio.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

The Charter was found to be applicable because it concerned the protection of consumer rights by a court of law. This case secured the right for a consumer to be protected, despite not arguing that he has this protection. Instead, the judge is obliged to consider consumer protection ex officio, even when deciding whether to enforce an arbitral award against the consumer.

Safeguards for access to justice
  • Right to access a court
  • Right to an effective remedy before a tribunal
Reference to national provisions

Article 17 of the Dutch Constitution: The right to a fair trial within a reasonable time in front of an independent and impartial judge.

Relevant principles applied
  • Effectiveness
Principle of effectiveness

In its evaluation, the Court notes that, due to the weight and public interest of Directive 93/13 it must be seen as equivalent to national rules of public order. Thus, according to the principle of effectiveness, the national judge must apply the same test to an arbitral award which he suspects is an unfair term within the meaning of Directive 93/13, as he would to a term which circumvents public order. The Court notes that, if the judge did not have the competency to apply this test, the principle of effectiveness will be undermined.

Elements of judicial dialogue

Vertical dialogue type
  • Dialogue between high court - lower instance court at national level
Cited CJEU
  • CJEU C‑137/08, Pénzügy
Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU.

Purposes of using judicial dialogue

Resolving judicial questions by the Court of first instance concerning conform interpretation of EU law.

Expected effects of judicial dialogue

Judicial reform.

Case author

Silvester van Kordelaar, University of Groningen

Published by Chiara Patera on 29 January 2020