This chapter examines the role of Article 47 of the Charter in Dutch unfair terms cases. The number of references to Article 47 by civil courts in the Netherlands is low compared to Spain. This does not mean that effective judicial protection is not an issue. The CJEU's case law on the UCTD has given rise to various procedural questions, in particular as to the implementation of the ex officio doctrine. This chapter starts with an overview of these questions, as well as possible explanations for the low number of references to Article 47 by Dutch civil courts (section 5.1). It then proceeds with an analysis of the few unfair terms cases where an explicit reference to Article 47 has been made (section 5.2). These cases reveal boTha signalling and a rhetorical function of Article 47: they show the courts’ awareness of the fundamental rights at stake and the persuasive authority of Article 47, especially in respect of norms with a protective purpose. Several cases concern the level and scope of judicial protection in unfair terms cases; these give a broad interpretation of available remedies, but do not mention Article 47 (section 5.3).

Furthermore, parallels can be drawn between Dutch and Spanish cases on the role of courts of appeal: these cases include, inter alia, Asbeek Brusse – until recently the only Dutch preliminary reference on the UCTD – and Sánchez Morcillo, one of the key judgments on Article 47 read in conjunction with the UCTD (section 5.4). Finally, the impact of Article 47 of the Charter via Banif Plus Bank and Asbeek Brusse, in respect of the right to be heard, is discussed (section 5.5).

BACKGROUND: A LIMITED ROLE OF ARTICLE 47 IN DUTCH UNFAIR TERMS CASES

IMPACT OF THE UCTD ON DUTCH CIVIL PROCEDURE

Consumer protection is considered to be a socio-economic component of Dutch private law, which mostly finds its expression in substantive rules of contract law. It has been linked to the notion of compensation for inequality between the parties (ongelijkheidscompensatie), which, in Dutch legal literature, is often referred to in the areas of labour law and administrative (procedural) law.