Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom
Hanna Schebesta, 'Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom' (2010) 18 European Review of Private Law, Issue 4, pp. 847–880
34 Pages Posted: 22 Oct 2016 Last revised: 9 Mar 2020
Date Written: 2010
Abstract
This article examines the Asturcom judgment of 6 October 2009 from the angle of ex-officio application of European law, specifically in terms of procedural autonomy, public policy, and international arbitration. In Asturcom, the ECJ was confronted with enforcement proceedings of a final arbitration award made in the absence of the consumer based on an arbitration agreement that contained a potentially unfair term. The ECJ examined the national rule under the principle of procedural autonomy in the form of the effectiveness and equivalence tests. It extended the use of the ‘contextual effectiveness test’ developed in Peterbroeck/van Schijndel to Consumer law. Most remarkably, the ECJ has manipulated the ‘equivalence test’ as to grant certain European norms public policy status on national level. Lastly, in terms of arbitration, the judgment reaches a result that is in conformity with international law.
Note: “Reprinted from European Review of Private Law, Vol. 18, Issue 4, 2010, pp. 847–880, with permission of Kluwer Law International.”
Keywords: procedural autonomy; Asturcom; effectiveness and equivalence in EU law; public policy exception; arbitration
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