Injunction reliefs
The injunction mechanism is a civil law enforcement instrument, which was implemented in legislation earlier in three counties; in Hungary in 1997 in Poland in 2000 and in the Czech Republic in 2002, but only in 2007 in Slovakia. The theoretical scope of such injunctions is broader in all four countries than in the 2009/22/EC Directive, because all these member states widened the scope of application to practically all fields wherein consumers have some protected rights. Interestingly, the legislators of Slovakia and Hungary also transplanted injunction-type claims for individual cases but with collective effect into their Civil Codes. If the court determinates the invalidity of unfair contractual terms, the court calls on the trader to eliminate the unfair term with erga omnes effect, towards all consumers. This is an individual unfairness-test with collective effect, but very similar to the approach used in the abstract control of unfair terms in consumer contract, which is available for all consumer organisations in the Visegrad area. However, while erga omnes bans could be an effective sanction for deterring traders from using unfair contract terms, several practical problems arise with implementing the decision. It seems to be most problematic in Slovakia, where the binding effect of the injunction decision has the greatest scope. This is because, according to the Slovakian Code of Civil Dispute Procedure, all unfair contract terms with the same meaning, as defined in the court decision, must be eliminated from all consumer contracts, even if the trader did not participate in the litigation. The strict wording of the concrete terms is often complicated, because every contract is unique in some sense. In Hungary, the erga omnes effect is not widely understood by the jurisdiction; it is binding only between those parties that are registered business entities. Although the elimination of specific unfair contract terms can have a deterrent effect on similar contract terms on the market, its effect depends heavily on the how much businesses fear being accused by some individuals or a consumer organisation via an injunction of unfairness. Assuming that the number of injunction claims filed stays this low and that the consumer organisations will continue to lack the finances for numerous court proceedings, such a fear would be unrealistic.
Regarding the initiators of injunction procedures, we can see a wide variety in the Visegrad 4 countries. Those entitled to initiate injunction actions usually include consumers and consumer organizations, but in Hungary we can find a much wider claimant group, and a narrower one in Poland. In Hungary public prosecutors, and other institutions, such as ministers, administrative bodies and chambers, can also file injunction actions. Despite the wide entitlement, it should be noted that, between 2008 and 2013, public prosecutors become very important initiators of injunctions, filing most of the actio popularis suits to combat unfair contract terms in foreign currency mortgage contracts. On the other hand, in Poland, at the opposite extreme, injunction actions can be initiated exclusively by the President of the Competition Office, which makes injunctions an administrative rather than civil law procedure. While consumers, the consumer ombudsman and consumer organisations can petition it to launch injunction proceedings, the President of the Office does not however have an obligation to initiate an injunction procedure in response to such request, not even when the consumer ombudsman has made an announcement. The benefit of the administrative procedure is that the length of the process is usually much shorter than court proceedings, and also that, with the possibility of sanctioning the violating business, the mechanism can have a greater deterrent effect. Direct compensation of the consumer would also be possible according to Polish law, but such measures have only recently been adopted by the Competition Office, and business usually challenge this measure before court, which drastically prolongs the case.
To summarise, injunction actions are very rarely-used collective mechanisms in the Visegrad 4 countries due to the length, complexity and cost of the proceedings. A further problem, which makes this instrument impractical, is that there is rarely a possibility for direct compensation of consumers, although in Hungary a “restitutio in integrum” would be theoretically possible, but usually courts only state the unfairness of the contract term, without addressing the compensatory part of the claim.