Unfair terms in B2C contracts

1
Unfair terms in B2C contracts
m.w.hesselink_at_uva.nl

• Workshop on Common European Sales Law,
• Committee on Legal Affairs, European Parliament

2
Background

• Unfair terms directive 1993 minimum
  harmonisation
• Consumer rights directive 2011
• Proposal contained chapter V, with black and grey
  lists
• Aim increasing legal certainty
• Not adopted
• As a consequence, acquis unchanged for almost two
  decades

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Proposal for a CESL

• Chapter 8 unfair contract terms
• Deviates on some points from Feasibility Study
  (Expert Group) lower consumer protection
• Eg individually negotiated terms
• Similar to unfair terms directive 1993
• However, equivalent of full harmonisation gt the
  Commission had to make choices

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General outline

• Unfair terms are not binding on the consumer
  (art. 79)
• Unfair when significant imbalance
  rights/obligations, contrary to good faith and
  fair dealing (art 83)
• Excluded from unfairness control core and price
  terms (art 80 (2))
• Black and grey lists (arts 84 and 85)
• Duty of transparency (art 82) (not about
  unfairness)

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Certainty and simplicity compared to unfair terms
directive

• Conceptually and terminologically very close can
  benefit from two decades of interpretative
  experience
• Instant predictability of outcomes
• Significant increase in legal certainty through
  black and grey lists
• Make interpretation of concept of unfairness
  much more predictable

6
Clarity of relation to national law

• Relation CESL to national law straightforward
• CESL will be national law (2nd national regime)
• Rules from 1st national regime within substantive
  scope of CESL will not apply
• Rules from 1st national regime outside
  substantive scope of CESL will apply
• Some difficulties, eg what about national rules
  on immoral clauses?

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Institutional dimension

• CJEU Freibuburger Kommunalbauten prevents
  floodgates
• Unfairness for national courts to decide, in
  light of national law from which the term
  deviates
• Here national law from which the term deviates is
  CESL
• Risk of floodgates
• Time for a civil court of first instance or civil
  chamber of general court?

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Relevance of CJEU case law on unfair terms
directive

• Similar tests
• But in directive as minimum requirement
• Therefore case law relevant, as minimum
• Reverse case relevance of CJEU case on CESL for
  interpretation unfair terms directive?
• May become important benchmark, especially if
  consumer-friendly, where now largely left to
  national law

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Conclusions and suggestions

• Assessment in terms of simplicity and legal
  certainty is positive
• Scope for improvement on minor points
• Beyond scope of our note
• Consumer protection could be further improved, eg
  by extending control to individually negotiated
  terms