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

Resumen

For the sake of the effectiveness of Directive 93/13 on unfair terms in consumer contracts, the CJEUjudgments in Unicaja, Ibercaja and SPV Project urge the courts of Spain and Italy to disregardessential 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. Afterlooking 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 (i)the potential risks to the principles of equality, legal certainty and impartiality; (ii) the accuracy ofthe CJEU’s argument on the effectiveness of Directive 93/13, as, on the one hand, the said basicprinciples of national procedural law do not prevent diligent consumers from availing themselves ofthe full protection granted by the Directive and, on the other hand, the proper enforcement ofmandatory rules with a strong dimension of public interest do not necessarily require exceptions tothe application of those principles; (iii) the undermining of the principle of procedural autonomy; (iv)the new risks of reluctance to accept the primacy of EU law and the authority of the CJEU; and (v)the doubts as to the scope and limits of the jurisprudence stemming from Unicaja, Ibercaja and SPVProject. Subsequently, the alternative approach of Impuls Leasing – focussing on particularprovisions of national procedural law rather than on basic principles – is considered. Ultimately,looking at subsequent cases decided by the CJEU, it appears that the Court is willing to make theapproach in Impuls Leasing prevail and to keep the jurisprudence emanating from Unicaja, Ibercajaand SPV Project contained.