Effective Protection of Consumers by the UCTD in Order for Payment Procedure: The Estonian Example

Abstract:

The order for payment procedure is a simplified procedure used in many member states of the EU. The procedure is highly formal and usually no substantial evidence is assessed in the course of the procedure. This is also the case in Estonia, where this procedure is used very frequently against consumers. The CJEU has, in several cases, assessed the national rules of Member States regarding the order for payment procedure and explained in which cases these rules are not in line with the purpose of the UCTD.

In this article, Estonian legislation is used as an example to show that as the EU law does not address the order for payment procedure directly, the protection of consumers’ rights depends on the specificities of national procedural law. Even if the member state’s legislation is in compliance with the positions expressed by the CJEU, the order for payment procedure might not effectively ensure the protection required under the UCTD. This is so because, under the existing CJEU practice, the court does not have to demand submission of evidence, and sellers and suppliers can thus avoid the controls on unfairness in the standard terms quite easily. This paper also analyses whether it would be acceptable to fully delegate the order for payment procedure to computer systems including artificial intelligence, as it has been suggested to do in Estonia.