Abstrakt
The issue raised in the case note refers to the nature and proper application of the contra proferentem rule of interpretation. The comment contests the argumentation of the ECJ pursuant to which lack of an explicit, normative exclusion of the contra proferentem rule from the collective actions for cessation of standard terms and conditions would frustrate the effectiveness of such process. The author advocates for an approach in which an interpretation, in accordance with the contra proferentem method, is used as a subsidiary tool to control the fairness of standard terms and conditions. Such a view is justified by the fundamental principle of the consumer law which is maximization of their level of protection. Meanwhile, an interpretation most favorable for consumers is not always in theirs best interests, and they could benefit more from elimination of an abusive clause in result of the fairness control. Therefore, contra proferentem rule should be applied only to the standard
terms and conditions that successfully passed the fairness test and thus cannot undermine the effectiveness of this control, despite the absence of rules that exclude such interpretation with reference to the cases of collective control. Moreover, the case note points out that a court is not allowed to use the contra proferentem rule in the collective actions due to the procedural restrictions. That reinforces the conclusion that the omission of a normative exclusion does not lower the level of consumer protection.