INTRODUCTION

This chapter deals with the ex officio application before Swedish courts of the Unfair Terms Directive. The Directive contains two related, but different, means of providing consumer protection before domestic courts and other public enforcement mechanisms (in the wide sense). One of the means concerns consumer protection in individual cases and the other aims at consumer protection as a public interest. The former draws on the traditional tools and objectives of civil procedure (individual compensation with a retrospective focus on the circumstances in the individual case), while the latter is designed to allow for public interference with sellers and suppliers for the prospective objective of correcting individual abusers, but primarily to clarify the law and deter future abuses.

The following will be limited not only to one aspect of the general subject but also to one part of that aspect: the obligation on Swedish courts to act of their own motion to safeguard consumer interests in individual cases where consumers are defendants. First, the public enforcement of consumer protection will be dealt with only insofar as it concerns individual disputes where unfair terms in consumer relations are of relevance. Second, situations where consumer protection emerges in cases where the consumer acts as claimant will be left out. This delimitation may be surprising since recently the EU legislature has been particularly active in relation to public enforcement and devising mechanisms for conflict resolution where consumers are initiators. Still, I would say that the most frequent way in which an unfair term under a consumer contract comes to be tried before a court or a quasi-court (or to be settled without the involvement of the judiciary) is where the seller/supplier directs a claim for payment against the consumer. Hence, I have considered it relevant to use that angle in a discussion on the practical implementation in Sweden of the requirements of consumer protection before the courts.

The focus will be on the requirements of the Directive, as revealed through the case law of the European Court of Justice (ECJ), in relation to the obligation on national courts to protect consumer interests ex officio.