The Court of Justice on Unfair Terms and Supplementation of the Contract: How Far Is Too Far?

The article deals with the problem of whether – and under what conditions – the judge can modify an unfair term included in a consumer contract or replace it with a default rule to manage the resulting gap. This area of the law has been recently developed through several judgments of the Court of Justice of the European Union (CJEU), which has severely curtailed the ability of national legal systems to intervene in consumer contracts to supplement provisions set aside as unfair pursuant to art 6(1) of the Directive 93/13/EEC. After reviewing the European case law on the matter, the article discusses its implications and concludes that the current legal framework in this area is unprincipled and unjustifiable. Furthermore, the article puts forth a different approach, more in line with the text of Directive 93/13/EEC and capable of balancing consumer protection with traditional contract law principles and with appropriate deference to national legal systems. Finally, the article suggests that the present case study may show the inherent limits of the CJEU in the future development of EU consumer and market law.