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.
25 Pages Posted: 12 Jun 2012 Last revised: 15 Jun 2012
Date Written: June 12, 2012
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: Suggested Citation