Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts

20 Pages Posted: 9 Dec 2014

See all articles by Oliver Gerstenberg

Oliver Gerstenberg

University College London - Faculty of Laws; Princeton University - Program in Law & Public Policy

Date Written: December 9, 2014

Abstract

This article explores the — often controversial — role of the CJEU as an interpreter of Directive 93/13/EEC on unfair terms. A fundamental problem any modern system of private law must address is how to combine two types of provisions: those that are intended to facilitate private ordering through voluntary transactions; and those setting out certain mandatory terms that are intended to protect vulnerable consumers against risks inherent to free market transactions. In the European social market, this fundamental problem is exacerbated by the fact that the EU does not have a private law system of its own but a multilevel system that must operate in close cooperation with national legal systems. This article argues that, in response to the failure of various legislative initiatives, the Court's jurisprudence has acquired both a regulatory dimension and a constitutional dimension. The emergent judicial regime illustrates an important departure from a rule-­based conception of private law, based on private autonomy as a stand-­alone value, towards an innovative conception which extends proportionality analysis into substantive private law but avoids one-­sided outcomes.

Keywords: Private Law, CJEU, Directive 93/13/EEC on unfair terms, multilevel system, proportionality analysis, legitimacy

Suggested Citation

Gerstenberg, Oliver, Constitutional Reasoning in Private Law: The Role of the CJEU in Adjudicating Unfair Terms in Consumer Contracts (December 9, 2014). Available at SSRN: https://ssrn.com/abstract=2535884 or http://dx.doi.org/10.2139/ssrn.2535884

Oliver Gerstenberg (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

Princeton University - Program in Law & Public Policy

Wallace Hall
Princeton, NJ 08544
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
115
Abstract Views
573
Rank
433,058
PlumX Metrics