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Unfair terms in B2C contracts Workshop on Common European Sales Law, Committee on Legal Affairs, European Parliament

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Presentation on theme: "Unfair terms in B2C contracts Workshop on Common European Sales Law, Committee on Legal Affairs, European Parliament"— Presentation transcript:

1 Unfair terms in B2C contracts Workshop on Common European Sales Law, Committee on Legal Affairs, European Parliament

2 Unfair terms in B2C - Hesselink2 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

3 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 Unfair terms in B2C - Hesselink3

4 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) Unfair terms in B2C - Hesselink4

5 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 Unfair terms in B2C - Hesselink5

6 Clarity of relation to national law Relation CESL to national law straightforward CESL will be national law (2 nd national regime) Rules from 1 st national regime within substantive scope of CESL will not apply Rules from 1 st national regime outside substantive scope of CESL will apply Some difficulties, eg what about national rules on immoral clauses? Unfair terms in B2C - Hesselink6

7 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? Unfair terms in B2C - Hesselink7

8 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 Unfair terms in B2C - Hesselink8

9 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 Unfair terms in B2C - Hesselink9


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