Improving the quality of consumer choice: Unfair Terms Directive revisited

This article investigates how the Unfair Terms Directive (UTD) attempts to improve the quality of consumer choice through establishing the extended choice mechanism. The article consists of three parts: analytical, interpretive, and doctrinal. The analytical part explains how the ex post control of contract terms provides consumers with an opportunity to rethink their original, poor-quality choice, and to eventually make a subsequent, exonerating choice. This fiction of a uniform, high-quality choice is established by the so-called extended choice mechanism. The interpretive part of the article elucidates the normative principle underlying the extended choice mechanism. The article argues that consumer law considers choices as intrinsically valuable expressions of personal autonomy. Therefore, it posits that the judicial control of standard form contracts, and EU consumer law more generally, is guided by the principle of consumer autonomy. The article thus opposes the welfarist view, according to which choices are valuable instrumentally as tools of maximizing efficiency, or facilitating the European Union (EU) internal market. The doctrinal part of the article substantiates its analytical and interpretive arguments. It covers fundamental strands of the Court of Justice of the European Union case law concerning unfair terms: the consequences of removing unfair terms from consumer contracts, the transparency requirement and the ex officio doctrine. Despite its local focus, the article’s conclusions are more general, since factors that undermine the quality of consumer choice – and regulations addressing them – are similar around the world.