6.3.6.1 Restoring the unequal horizontal relationship

296. In relation to civil remedies for infringements of Union law in horizontal legal relationships the mutual relation of the parties involved is of importance. For example, the Court of Justice has repeatedly stressed that a consumer finds himself in a weaker position than the professional trader.1 Instruments of Union law in this field aim at protecting the weaker party and at re-establishing equality between both parties.2 Remedies provided by the Member States have to respect these objectives.3 In the context of unfair terms in consumer contracts Directive 93/13 requires that unfair terms “shall not be binding” consumers.4 In principle, Directive 93/13 aims to restore the equality between consumer and trader while preserving the validity of the contract as a whole; it does not aim to abolish all contracts containing unfair terms in their entirety.5 However, Union law does not preclude a Member State from providing that a contract between a consumer and a professional trader that contains one or more unfair terms is null and void in its entirety when that provides the consumer with better protection.6 When a contract contains one or more unfair terms, the national court must assess whether the contract as a whole does not bind the consumer, or whether without those terms, the contract can continue to exist. In that assessment the situation and interests of the consumer are not decisive.7 Hence, the protection of the weaker party is important, but not absolute in determining a remedy: the interests of the other party must also be taken into account.8 Nevertheless, the Court has clarified that Union law precludes national courts from revising or modifying unfair terms, even if such would (also) be to the advantage of the consumer.9 If it were open to national courts to revise the dissuasive effect on professional traders would be compromised and their interests would be safeguarded, which would affect the Directive’s objective to protect consumers against unfair terms.10

Just like a consumer finds himself in a – socioeconomically – weaker position than the professional trader, an employee finds himself in a weaker position than an employer.11 Even though this is a different type of legal relationship and one for which Union law does not prescribe basic or concrete remedies, it is implausible that a fundamentally different approach applies to employment contracts that contain clauses that are incompatible with Union law. This matter is discussed in Chapter 7.

Lastly, it is noted that the issue of a weaker and a stronger party does not per se occur in all contractual legal relationships in which a rule of Union law is infringed, and neither does it in extra-contractual legal relationships in which a rule of Union law is at stake. In such cases, the preceding focus on restoring the unequal relationship between a weaker and a stronger party is irrelevant. As a result, when the particular rule of Union law infringed does not have a specific party-based scope of protection, there would be no immediate need for the Court of Justice to embark upon the mutual relation of the parties involved in extra-contractual legal relationships or contractual relationships between parties of equal ranking. Nevertheless, it is noted that the Court of Justice’s notion that an unequal legal (contractual) relationship must be restored matches with the general idea in patrimonial law that remedies for infringements of subjective rights of a private party in contractual or extra-contractual legal relationships essentially aim at restoring the – patrimonial – position of the party whose right was infringed.