Unfair Contract Terms Directive - 93/13/EC

Question 1

UCTD - key notes

Answer 1

• minimum harmonisation (stricter MS legislation possible)
• B2C contracts (protection of weaker party)
• harmonisation of not individually negotiated terms (transaction costs)
• often national courts’ duty to assess individual circumstances
• sanctions: harmonised (Art. 6) -> non binding for consumers

Question 2

Unfair terms - role of national courts

Answer 2

• ex officio assessment by national court, if case falls in scope of UCTD (Penzügyi)
• consumer and trader should be informed by the national court of the potential unfair nature of a term (Pannon, Banif Plus Bank)
• default national law to be considered

Question 3

Unfair terms - catch-all clause

Answer 3

Art. 3 (1): contrary to good faith, significant imbalance to the detriment of the consumer (Aziz)

Question 4

Transparency of unfair terms - intentions

Answer 4

Invitel, Amazon: informing consumer about mandatory law, if consequences of clause are determined by law

• Kasler case
• > consumer must be able to foresee on the basis of clear intelligible criteria the economic consequences for him

Question 5

Sanctions

Answer 5

Art. 6 (1)

• > partial invalidity
• > back to the status quo ante

Banco Espangnol: revision of national court of unfair term not allowed
Kasler: substitution of unfair term only allowed, if contract could not continue otherwise