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Józon, Mónika --- "The methodology of judicial cooperation in unfair contract terms law" [2017] ELECD 759; in Cafaggi, Fabrizio; Law, Stephanie (eds), "Judicial Cooperation in European Private Law" (Edward Elgar Publishing, 2017) 129

Book Title: Judicial Cooperation in European Private Law

Editor(s): Cafaggi, Fabrizio; Law, Stephanie

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781786436689

Section: Chapter 6

Section Title: The methodology of judicial cooperation in unfair contract terms law

Author(s): Józon, Mónika

Number of pages: 38

Abstract/Description:

Unfair contract terms law is certainly the most challenging testing ground of European private law, in respect of the impact of the global financial crisis. This chapter explores the judicial cooperation between Member State courts and the CJEU in search of solutions in response to the fast-changing ‘judicial needs’ of the law of unfair contract terms. Judicial cooperation is understood for the purposes of this chapter as the dialogue that takes place between the CJEU and the domestic judiciaries on policy and which implicitly affects the methodology of judicial enforcement. The focus of the comparative study is Hungary and Romania, two jurisdictions that share many commonalities and particularities, specific to the Central-Eastern European Member States. Hungary, belonging to the German legal family, joined the EU in 2004 and is today the leading country along with Spain in respect of the number of preliminary references sent to the CJEU; as such, it significantly contributes to the ‘judicial unification’ of unfair contract terms law in Europe. The identification and analysis of why similar problems are found in jurisdictions as diverse as Hungary and Spain would necessitate a separate chapter that goes beyond the aims of this book. However, this chapter explores a more challenging question: the reasons why two countries with similar legal-cultural, economic and judicial inheritance (i.e., Hungary and Romania) cope so differently in their task of enforcing the Unfair Contract Terms Directive (hereinafter, UCTD). Romania, having a strong French legal tradition, joined the EU in 2007 and its judiciary has successfully handled the interpretation problems arising out of the interplay of domestic private law with the requirements of the UCTD. The policy-type reasoning of the CJEU constitutes an integral part of the private law thinking and judicial methodology. For this reason, only a few questions have been referred to the CJEU by the Romanian courts. However, the preliminary references reflect only the tip of the iceberg of the interpretation problems arising at the Member State level. They do not necessarily fully reveal the private law realities of the specific country, because this procedure may be used for very different purposes within the domestic legal and political environment. Thus this chapter also aims to explore the specific domestic function(s) underpinning the preliminary reference procedure in order to identify what types of ‘judicial externalities’ are created at the European level by the referring courts acting as driving forces of two interrelated processes: that of bottom-up unification via the Europeanization of specific domestic private law problems, and the subsequent internalization arising from the transposition of European judicial solutions in line with domestic judicial policy. The risks and costs of such judicial externalities are discussed both domestically and in a European dimension.