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Unfair terms in B2C contracts

m.w.hesselink@uva.nl. Unfair terms in B2C contracts. Workshop on Common European Sales Law , Committee on Legal Affairs , European Parliament. Background. Unfair terms directive 1993: minimum harmonisation Consumer rights directive 2011

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Unfair terms in B2C contracts

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  1. m.w.hesselink@uva.nl Unfair terms in B2C contracts Workshop on Common European Sales Law, Committee on Legal Affairs, European Parliament

  2. Background • Unfair termsdirective 1993: minimum harmonisation • Consumer rightsdirective 2011 • ProposalcontainedchapterV, with black andgreylists • Aim: increasinglegalcertainty • Notadopted • As a consequence, acquisunchangedforalmosttwo decades Unfair terms in B2C - Hesselink

  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 - Hesselink

  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 - Hesselink

  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 - Hesselink

  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? Unfair terms in B2C - Hesselink

  7. Institutional dimension • CJEU FreibuburgerKommunalbautenprevents 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 - Hesselink

  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 - Hesselink

  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 - Hesselink

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