Unfair Contract Terms in B2C Contracts

ad hoc briefing paper for the European Parliament’s Committee on Legal Affairs, May 2012, PE 462.452, 23 p.

Amsterdam Law School Research Paper No. 2012-68

Centre for the Study of European Contract Law Working Paper Series No. 2012-07

25 Pages Posted: 12 Jun 2012 Last revised: 15 Jun 2012

See all articles by Martijn W. Hesselink

Martijn W. Hesselink

European University Institute; University of Amsterdam

Marco Loos

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: June 12, 2012

Abstract

The text, structure and terminology of Chapter 8 CESL on ‘Unfair contract terms’ deliberately are quite similar to the Unfair Terms Directive 1993. However, given the fact that the Unfair Terms Directive 1993 only provided for minimum harmonisation and that, in this respect, the self-standing nature that the Commission envisages for the CESL is functionally similar to full harmonisation, the European Commission had to make certain choices. On those points where the proposal deviates from the Expert Group's Feasibility Study this is to the disadvantage of the consumer.

The black and grey lists contained in the CESL significantly increase legal certainty compared to the Unfair Terms Directive.

The wording of the unfairness test is deliberately close to the Unfair Terms Directive. Therefore, the interpretation by the CJEU of that directive will be relevant also for the interpretation of the CESL (as a minimum) and vice versa (spill-over effect), which should contribute to legal certainty with regard to both instruments.

Under the CESL there will be full unfair terms control by the CJEU, given that Court cannot leave the unfairness control to national courts as it did for the directive (Freiburger Kommunalbauten). This may have important institutional implications ('floodgates'). This raises the question whether the time has not come for the EU create a new Court of first instance (or a special new chamber of the General Court) for civil law cases.

Keywords: CESL, Unfair terms, B2C contracts, consumer sales

JEL Classification: K12

Suggested Citation

Hesselink, Martijn W. and Loos, Marco, Unfair Contract Terms in B2C Contracts (June 12, 2012). ad hoc briefing paper for the European Parliament’s Committee on Legal Affairs, May 2012, PE 462.452, 23 p. , Amsterdam Law School Research Paper No. 2012-68, Centre for the Study of European Contract Law Working Paper Series No. 2012-07, Available at SSRN: https://ssrn.com/abstract=2083041

Martijn W. Hesselink (Contact Author)

European University Institute ( email )

Villa Salviati
Via Bolognese 156
Florence, 50139
Italy

University of Amsterdam ( email )

University of Amsterdam, Faculty of Law
P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

Marco Loos

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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