## Facts

- The case concerned Asturcom Telecomunicaciones, a telecommunications provider, and a consumer involved in a contractual dispute.
- The contract included an arbitration clause stipulating that disputes were to be resolved through arbitration rather than before ordinary courts.
- The consumer challenged the arbitration clause, arguing it potentially limited access to ordinary courts.
- The dispute centered on whether the national court was obligated to examine the fairness of such an arbitration clause in the absence of a specific request from the consumer.

## Issues

1. Whether Directive 93/13/EEC on unfair terms in consumer contracts applies to arbitration clauses within consumer contracts.
2. Whether national courts are required to examine, of their own motion (ex officio), the fairness of an arbitration clause even if the consumer has not raised the issue.
3. What criteria should be applied by national courts in assessing the unfairness of arbitration clauses under Directive 93/13/EEC.

## Decision

- The European Court of Justice confirmed that Directive 93/13/EEC applies to arbitration clauses in consumer contracts.
- The Court held that national courts have a duty to assess, on their own initiative, whether an arbitration clause is unfair, regardless of whether the consumer invokes this protection.
- Criteria for assessing unfairness include transparency (plain, intelligible language) and whether the clause causes a significant imbalance to the detriment of the consumer.
- The Court emphasized that limiting a consumer’s access to ordinary courts, or imposing disproportionate costs or procedural disadvantages, may render an arbitration clause unfair.
- The national court in the case was required to review the fairness of the arbitration clause in the context of the specific contract at issue.

## Legal Principles

- Directive 93/13/EEC aims to harmonize consumer protection and prevent unfair contractual imbalances in contracts not individually negotiated.
- Arbitration clauses in consumer contracts are subject to scrutiny for fairness under Directive 93/13/EEC.
- National courts must conduct ex officio review of unfair contract terms, including arbitration clauses, to ensure effective consumer protection.
- Transparency (plain and intelligible language) and the absence of significant imbalance are essential criteria for fairness.
- Unfair terms are not binding on the consumer.

## Conclusion

The ECJ clarified that national courts must review, ex officio, the fairness of arbitration clauses in consumer contracts under Directive 93/13/EEC, ensuring consumers are protected even when they do not specifically challenge such clauses. This strengthens consumer rights and requires courts to assess both the transparency and potential imbalance posed by arbitration clauses in contractual relationships.

Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira (Case C-40/08) [2009] ECR I-9579