Demolishing procedural autonomy in the name of effectiveness: Unicaja, Ibercaja and SPV Project

Abstract

For the sake of the effectiveness of Directive 93/13 on unfair terms in consumer contracts, the CJEU judgments in Unicaja, Ibercaja and SPV Project urge the courts of Spain and Italy to disregard essential principles of national procedural law, such as res judicata, preclusion, party disposition, consistency of judgments or prohibition that an appellant is prejudiced by her own appeal. After looking at the judgments themselves, this contribution discusses the consequences for consumers, businesses and national courts. Next, several points of critique are made. These points refer to the potential risks to the principles of equality, legal certainty and impartiality; the accuracy of the CJEU’s argument on the effectiveness of Directive 93/13, as, on the one hand, the said basic principles of national procedural law do not prevent diligent consumers from availing themselves of the full protection granted by the Directive and, on the other hand, the proper enforcement of mandatory rules with a strong dimension of public interest do not necessarily require exceptions to the application of those principles; the undermining of the principle of procedural autonomy; the new risks of reluctance to accept the primacy of EU law and the authority of the CJEU; and the doubts as to the scope and limits of the jurisprudence stemming from Unicaja, Ibercaja and SPV Project. Subsequently, the alternative approach of Impuls Leasing – focussing on particular provisions of national procedural law rather than on basic principles – is considered. Ultimately, looking a subsequent cases decided by the CJEU, it appears that the Court is willing to make the approach in Impuls Leasing prevail and to keep the jurisprudence emanating from Unicaja, Ibercaja and SPV Project contained.