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Unfair terms in B2C contractsWorkshop on Common European Sales Law, Committee on Legal Affairs, European Parliament
Unfair terms in B2C - Hesselink 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
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 > 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
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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
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