The obligation on Dutch and Italian Courts to apply EU Law of their own motion

The European Court of Justice (ECJ) case law relating to the power of and the obligation on national courts to assess, of their own motion, the unfairness of contractual terms in consumer contracts under Directive 93/13/EEC has had a remarkable impact on national legal systems by introducing rules which often derogate from ordinary procedural rules and from the principles of judicial restraint and party autonomy. They also derogate from the traditional rules on contractual invalidity. This article, drawing extensively on the work of Arthur Hartkamp, summarizes the relevant legal framework on the EU level and in the Dutch and Italian legal systems and then focuses on two recent and groundbreaking judgments of the Supreme Courts of the Netherlands and Italy in order to assess the impact of the relevant EU law and to compare these judgments. With regard to the ex officio assessment of the unfairness of terms in consumer contracts, the comparison shows that the impact of EU case law has been greater in the Netherlands than in Italy, as the Italian regulation implementing Directive 93/13/EEC, unlike its Dutch counterpart, already provided explicit rules on the ex officio assessment of unfair terms by courts, similar to the rules subsequently established by the ECJ. Furthermore it emerges that the approach adopted in the Netherlands is restrictive with regard to the power of the court to raise ex officio the question of nullity. In Italy, on the contrary, that power is the characteristic unifying all forms of nullity laid down in the legal system, with the caveat that when the nullity is 'protective', as in cases of nullity provided by consumer law, the consumer can oppose the nullity (Pannon).