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20.4.

2001 EN Official Journal of the European Communities C 116/117

Opinion of the Economic and Social Committee on the ‘Report from the Commission on the
implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer
contracts’

(2001/C 116/25)

On 27 April 2000 the Commission decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the ‘Report from the Commission on
the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer
contracts’.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 8 November 2000. The rapporteur was
Mr Ataı́de Ferreira.

At its 377th plenary session (meeting of 30 November 2000), the Economic and Social Committee
adopted the following opinion by 85 votes to 38 with 11 abstentions.

1. Introduction ‘Sale of Goods and Supply of Services Act’ (1980), the


Luxembourg law of 1983 identifying 20 types of unfair terms;
and the 1985 Portuguese law on general contract terms.

1.1. The traditional principles of contractual autonomy,


equality of the parties and freedom to bargain, as summed up
by the Latin tag ‘pacta sunt servanda’, are common to all 1.3. At European level, the Council of Europe drew up a
European civil law systems, whether or not they derive recommendation on unfair terms in contracts as long ago as
from the Napoleonic code. They were designed to regulate 16 November 1976 (3). At EU level, the matter was first raised
contractual relations justly and equitably, particularly those in the first consumer policy programme (4); in the second
with private individuals. The insufficiency of these principles programme (1981) the Council explicitly asked the Com-
came to light in the industrial era with the emergence of mission to draw up a discussion paper on the subject (5). The
standard or predetermined contracts (1). Such contracts are Commission responded with a communication to the Council
distinguished (a) by the fact that one of the parties occupies a on 14 February 1984(6).
superior economic position to the other which enables it to
dictate the terms of the agreement, (b) by the unilateral nature
of the terms, which are drawn up specifically in the interests 1.4. The Commission issued its formal proposal on 27 July
of the stronger party, and (c) by the fact that the wording of 1990. This subsequently became Directive 93/13/EC of 5 April
the contract cannot be changed, so that the only choice open 1993 (7).
to the weaker party is to take it or leave it (2). This type of
contract raises various problems, notably as regards contrac-
tual autonomy and content, as the content takes the form of
general terms which are not negotiated. 1.5. The preamble and Article 1 of Directive 93/13/EC
clearly state that its purpose is ‘to approximate the laws,
regulations and administrative provisions of the Member States
relating to unfair terms in contracts concluded between a seller
1.2. Various European countries have framed specific pro- or supplier and a consumer’, it being necessary to ‘remove
visions, either as separate pieces of legislation or as parts of unfair terms’ from such contracts, according to ‘assessment
their civil codes, to end the unfairness caused by the use of criteria’ or ‘uniform rules’, ‘in order to facilitate the establish-
certain types of contractual clauses which created an imbalance ment of the internal market and to safeguard the citizen in his
between the contracting parties. These provisions are aimed role as consumer when acquiring goods and services under
more especially at the ‘general terms and conditions’ of contracts which are governed by the laws of Member States
predetermined contracts. Examples include the Danish law on other than his own’.
trading practices (1974), the German ‘AGB-Gesetz’ (December
1976), the UK ‘Unfair Contract Terms Act’ (1977), the Irish

(3) Council of Europe Resolution 76(47) of 16.11.1976.


(4) Approved by Council Resolution of 14.4.1975.
(1) The French jurist Saleilles coined the term ‘contrats d’adhésion’ (5) Point 30: ‘The Commission will submit, as a first step, a discussion
in 1901 for proposed contracts in which the content was paper in which it will set out all the problems which this subject
predetermined and non-negotiable. The term is now firmly involves and the various options open with a view to harmonising
established in the Latin countries, while countries with common those aspects of competition which may be affected by disparities
law systems use the term ‘standard form contract’. in this area.’ (Bulletin of the EC 5/81).
(2) This is the definition of Carbonnier, in ‘Droit Civil’, 6th ed, T4, (6) COM (84) 55 final — Bulletin of the EC — Supplement 1/ 84.
1969, p. 53. (7) OJ L 95, 21.4.1993.
C 116/118 EN Official Journal of the European Communities 20.4.2001

1.6. The Directive expressly excludes: 1.11. Some five years later, on 1 to 3 July 1999, the
Commission launched a public debate to assess the situation
and future prospects regarding the Directive. The conference,
— contracts concluded between sellers or suppliers; held in Brussels, brought together 300 specialists in contract
law and consumer law, representatives of the Member States
and of interested consumer and trade organisations, and
— contracts concluded between consumers; officials of the Community institutions (1).

— employment contracts;
1.12. Article 9 of the Directive requires the Commission to
present a report to the European Parliament and the Council
— contracts relating to succession rights and rights under by 31 December 1999 ‘concerning the application of the
family law; Directive’. This report was published on 27 April 2000, and
forms the subject of the present opinion.

— contracts relating to the incorporation and organisation


of companies.
1.13. The Commission’s report has two objectives: (a) to
make a critical analysis not only of the arrangements set up to
harmonise legal provisions on the definition, prevention and
1.7. The minimalist approach enshrined in Article 8 of the penalising of the use of unfair terms in consumer contracts,
Directive gave Member States the option of excluding the but also of the way in which they are transposed, implemented
following from their transposition provisions: and applied in the Member States; (b) to launch a public
debate and call for contributions to the revision and possible
reformulation of the existing arrangements.
— terms which had been negotiated individually;

— terms which reflect mandatory statutory or regulatory


provisions and the principles or provisions of inter-
national conventions; 2. Assessment of the Commission report

— terms relating to the definition of the main subject


matter of the contract or the adequacy of the price or
remuneration in relation to the goods or services supplied, 2.1. The report is of a high technical standard and is well
provided the terms are in plain intelligible language. documented. Its publication is timely, even though — as the
report itself acknowledges — certain Member States which
transposed the Directive only very recently have little experi-
ence of the arrangements.
1.8. The Directive also contains an indicative and non-
exhaustive list of ‘the terms which may be regarded as unfair’
if they meet the conditions described in Article 3(1), i.e. if
‘contrary to the requirement of good faith, [a term] causes a 2.2. The Committee also notes the report’s effort to sum-
significant imbalance in the parties’ rights and obligations’ marise the various points made during debates at the abov-
(‘grey list’). ementioned conference of 1 to 3 July 1999, and especially the
listing of key issues as they emerged from those debates.

1.9. Lastly, the Directive states that Member States are to


ensure that ‘adequate and effective means exist to prevent the 2.3. The Committee appreciates the work the Commission
continued use of unfair terms’, including provisions whereby has carried out over the years, not only with the sectoral
‘persons or organisations, having a legitimate interest under analysis of the decisions of relevant national bodies which
national law in protecting consumers’ may take action ‘before have judged certain types of terms in contracts to be unfair
the courts or before competent administrative authorities for (their work too is acknowledged) but also through the setting-
a decision as to whether contractual terms drawn up for
general use are unfair, so that they can apply appropriate and
effective means to prevent the continued use of such terms’.

(1) The conference proceedings can be consulted on a 356-page


Internet site http://eu.int/comm/dgs/health consumer/events/event
1.10. Member States were to transpose the Directive by 29 01.pdf). The conclusions, summarised by the Head of Unit of
31 December 1994. DG XXIV, can be found on pp. 232 ff.
20.4.2001 EN Official Journal of the European Communities C 116/119

up of the CLAB (1) database, which is proving useful for 2.8. In keeping with its past views on these matters, the
mapping the situation at Community level. When the Com- Committee cannot accept that the review of the Directive be
mittee gave its views on the draft directive in 1991 (2), it used as an excuse to weaken the protection which it has
thought it essential to develop a notification system to monitor afforded EU consumers, as such a step is prohibited by the
the application of the arrangements to be set up; it is therefore Treaty (Article 2 and Article 153(1)).
especially pleased to see its proposal vindicated.

2.9. In this context, the present opinion analyses the


following key issues:
2.4. The Committee broadly supports both the Com-
mission’s critical approach to the arrangements set up under
the Directive (even if it does not endorse all the strands a) field of application of the Directive;
mentioned) and the careful and judicious way in which
questions are posed throughout the report.
b) definition of the general underlying principles;

2.5. It is clear that at EU level, notwithstanding the late c) typology and nature of the list of terms considered unfair;
transposition of the Directive by some Member States:
d) nature of the offence and its legal consequences;
a) the transposition provisions have not led to real harmon-
isation of the different national legislations; e) arrangements for penalising the use of unfair terms;

b) Member States have made differing interpretations of the f) role of dialogue between professionals and consumers;
nature and scope of the Directive’s precepts;
g) importance and future of CLAB.
c) the transposition provisions are not applied equally
effectively in all Member States.

3. The field of application of the Directive


2.6. Consumer protection thus continues to vary signifi-
cantly depending on the law governing consumer contracts.
The differences are heightened by the minimalist approach of 3.1. The first issue that must be raised concerns the scope
the Directive which enables some Member States to set up of the arrangements in question.
stricter (but unharmonised) consumer protection regimes.
Such a situation is hardly conducive to completion of the
single market. While it is understandable from a historical point of view that
protection against the use of unfair contract terms was
originally intended exclusively for consumers in their dealings
with professionals, Article 65 of the Treaty of Amsterdam (5)
2.7. The Committee should focus not so much on the today provides a legal basis for considering the issue in its
information about existing arrangements and their application, wider context.
but rather on considering proposals to amend and reformulate
the system. At the same time, it should take into account,
among other issues, the various questions raised by the
Commission (3) and reaffirm (or, if necessary, abandon) its
(5) Measures in the field of judicial cooperation in civil matters
previous positions on the issue (4). having cross-border implications, to be taken in accordance with
Article 67 and insofar as necessary for the proper functioning of
the internal market, shall include:
(a) improving and simplifying:
— the system for cross-border service of judicial land extra-
(1) Database on unfair terms. judicial documents;
(2) OJ C 159, 17.6.1991, pp. 34 ff., point 2.1.4. — cooperation in the taking of evidence;
(3) A closer scrutiny shows that the 22 questions on which the — the recognition and enforcement of decisions in civil and
Commission report encourages debate and invites opinions and commercial cases, including decision in extra-judicial cases;
suggestions are in fact 33. As already noted, the Committee (b) promoting the compatibility of the rules applicable in the
should not answer each question but adopt a stance on the most Member States concerning the conflict of laws and of jurisdiction;
important ones. (c) eliminating obstacles to the good functioning of civil proceed-
(4) Cf. in particular the Own-Initiative Opinion of 1998 on Con- ings, if necessary by promoting the compatibility of the rules on
sumers in the insurance market, OJ C 95, 30.3.1998. civil procedure applicable in the Member States.
C 116/120 EN Official Journal of the European Communities 20.4.2001

3.2. In some types of contract there is a contractual by the consumer, ‘mandatory’ provisions and contractual
imbalance and material inequality between the concluding stipulations relating to the price and subject matter of the
parties, as their content is proposed by one of the parties and contract. Most Member States, however, have not transposed
the other party can merely accept or reject its wording. This these exclusions, to the clear benefit of ensuing consumer
situation is found not only in relations between professionals protection arrangements.
and consumers, but in all those relations where contracts of
this type are used and where one of the parties does not have
the option of changing its content, as an equal. It particularly
affects industrial and commercial SMEs, and other pro- 3.6.2. The fact that most Member States do not apply the
fessionals and associations. Moreover, some Member States exclusions aggravates the legislative divergences at Community
have already adopted legislation on unfair contract terms level (unharmonised national legislation). This impedes the
which is much broader than that envisaged in the Directive, smooth operation of the single market, notably as regards
covering relations between private parties which do not competition (3).
constitute consumer relations, as well as relations between
professionals.

3.3. It does not, therefore, seem justified that existing


arrangements for preventing and punishing the use of unfair 4. Definition of general principles
terms should be limited to consumer relations. They should be
extended to all types of contractual relations with such
characteristics, as the Committee already pointed out in its
aforementioned 1991 opinion (1).
4.1. Where the system’s general principles are concerned,
one must first consider the importance that should be accorded
to certain fundamental concepts of contractual negotiations.
3.4. If the Commission intends not to significantly extend
the scope of the Directive in this light, it should, as a first step,
at least provide for mandatory ‘reflex-application’ in those
4.1.1. This is the case with the principle of transparency,
cases where a clause which is abusive in a ‘consumer-business’
the notion and function of which are not entirely clear in the
contractual relation is also part of a ‘business to business’
current wording, especially in terms of its consequences for
contractual relation at an earlier stage in the distribution chain.
the course of the contract.

3.5. This does not mean, however, given the special nature 4.1.2. Clarity would be improved if the Directive stated
of consumer relations, that contracts in which one of the unequivocally that:
parties is a consumer should not be treated differently, as both
the type of terms considered unfair and the degree of
protection may be different. A distinction may be made, for
a) terms which are not individually negotiated can only be
example, between absolute prohibitions and relative prohib-
considered as being accepted by the consumer if the latter
itions or arrangements for identifying unfairness (unofficial
has had the opportunity to study them and understand
recognition by the relevant authority or reversal of the burden
their implications before concluding the contract; and
of proof).

b) contractual terms must be drafted plainly, clearly and


unambiguously, so that they are understandable to the
3.6. Furthermore, the Commission rightly considers some average consumer applying the normal diligence of
of the exclusions (2) found in the current arrangements to be a ‘bonus pater familias’; if terms do not meet these
unjustified. requirements, they must be considered null and void (4).

3.6.1. This applies in particular to exclusions concerning


contractual terms which have been individually negotiated
(3) The answer to the questions posed under Question 1 of the
Commission report is thus ‘yes’ and the position is also clear on
the case for extending the Directive’s field of application to all
contracts, irrespective of whether one of the parties is a consumer.
This is in line with various suggestions made at the July 1999
(1) OJ C 159, 17.6.1991, point 2.3.3. conference.
(2) Listed in point 1.7 above. (4) As the ESC stated in point 2.5.3 of the abovementioned opinion.
20.4.2001 EN Official Journal of the European Communities C 116/121

4.1.3. In the interests of transparency, the legislation should difficulties, the Committee urges the Commission to reach a
specify the obligations incumbent on contracting parties position on the matter so as to clarify the meaning and content
who fail to meet the obligation to provide pre-contractual of these basic concepts, so that the Directive can be transposed
information in cases where non-negotiable general contractual into national law unambiguously and in a properly harmonised
terms are proposed. This is particularly important in the manner.
case of distance selling, for example with the use of new
technologies. The Committee drew the Council’s and Com-
mission’s attention to this, without success, in 1991(1) (2).
4.4. The Committee also asks the Commission and the
Member States to jointly explore the possibility of adopting a
new approach to this whole area, drawing on US experience
with the drafting of framework or standard laws. The aim
4.2. More importantly, however, the principle of good faith should be to make more substantive progress towards real
and how it relates to the notion of contractual imbalance also convergence of national legislation, at least as regards sectoral
need to be clarified at Community level if its transposition is aspects (e.g. insurance, banking, transport, general interest
not to lead to different, if not divergent, national provisions, services) and thus to help overcome the difficulties caused by
as occurs today. the existence, within the EU, of legal systems based on differing
concepts.

4.2.1. At the July 1999 conference, there was much


discussion about the various possible meanings of the
expression ‘contrary to the requirement of good faith’ in
Article 3(1) of the Directive. The translations of this expression 5. Typology and nature of the lists of unfair terms
in the various language versions differ, and in some cases are
diametrically opposed (3).

5.1. The types of general contractual terms that are pro-


hibited and the drafting of the respective list also need to be
revised, by classifying terms as either absolutely prohibited
4.2.2. It is also not clear what constitutes the ‘significant (black list) or ‘relatively’ prohibited (grey list).
imbalance’ that is mentioned as a further requirement, above
and beyond the requisite ‘good faith’.

5.1.1. Rather than increasing the number of examples of


unfair terms, the Committee considers that the list should be
tightened up and simplified.
4.2.3. Lastly, the whole concept of ‘good faith’ is ambiguous
as it varies according to the legal traditions of the Member
States. This raises the fundamental question of whether it is
appropriate to continue to use this concept as a supplementary 5.1.2. The Committee thinks that the black list should be
criterion for determining whether a term is unfair. Although restricted to cases in which the unfair nature is unanimously
theoretical, this question has obvious practical implications recognised in the legislation of all Member States as violating
when applying the relevant legislation. generally accepted principles, in any type of contract.

5.2. Irrespective of their indicative or binding nature, the


4.3. The Commission report does not adopt a specific black and grey lists should be transcribed in full in the legal
stance on this. Despite the inherent technical and legal acts transposing the Directive.

5.3. The binding nature of the black list and the purely
( 1)ibid. point 2.5. indicative nature of the grey list should be clearly specified in
(2) The Committee has thus answered Questions 3, 4 and 5 of the the legislative text. The current situation is unsatisfactory, as
Commission report (p. 18-19 of the English version). the Committee has already pointed out (4).
(3) A Portuguese lawyer at the conference commented: ‘What, in the
final analysis, does ’contrary to the requirement of good faith’
mean? ... Is good faith to be understood subjectively or objectively?
And if it is objective, can the term be unfair (because it creates ’a
significant imbalance ... to the detriment of the consumer’) and
still be in good faith?’ (Prof. Pinto Monteiro). (4) 1991 opinion, point 2.8.
C 116/122 EN Official Journal of the European Communities 20.4.2001

5.4. The content of the lists should also be revised in the 6.5. Lastly, the establishment of additional penalties in the
light of experience. Lists of terms could also be drawn up form of a ‘mandatory financial penalty’ only appears justified
according to the main types of contract concerned (e.g. if the person proposing the terms, after receiving an injunction,
banking services, insurance (1), time-shares, package holidays, wilfully continues to use or recommend terms which have
etc.) (2). been definitively banned by a court ruling (4).

7. Arrangements for preventing or stopping the use of


6. Nature of the offence and its consequences unfair terms

6.1. As the Commission acknowledges in its report, current


arrangements fail, in particular, to give a proper legal definition 7.1. Limitations of the legal system and possible ways of improving
of the offence of using unfair terms and its consequences. it

By merely stating that unfair terms ‘shall not be binding on the 7.1.1. In most Member States, the only way of preventing
consumer’, Article 6 of the Directive allowed Member States the use of unfair terms is through the courts. At the July
to establish different penalties for the use of unfair terms, 1999 conference, specialists all agreed that the legal controls
according to their particular legal traditions (e.g. non-existence, implemented in the various countries are unsatisfactory and
nullity, revocability, voidability, non-recognisability or unen- ineffective for stamping out the use of unfair terms in
forceability of the terms concerned). contracts.

6.2. Just as the civil penalty systems vary, so do their 7.1.2. The main problems were felt to be:
consequences, notably as regards binding the parties, the time
when the effects are produced, and the possibility of automatic
recognition by the courts (3). a) the slowness of legal proceedings, even when a special
accelerated procedure is used;

6.3. The Committee therefore recommends that the revised b) the general rules governing the scope and effect of each
Directive include a clear definition of the type of civil penalties case, which in theory are limited to the contract or term
that may be imposed for using unfair terms, their effect involved and the seller or supplier who has used it;
on contracts that include them (total or partial invalidity,
unenforceability, reduction, etc.), and the possibility of auto-
matic recognition by the courts. c) the possibility that, in the course of the injunction
procedure, the proposers of the contract could alter the
content, frustrating the action by claiming that a decision
was no longer needed and opening the way to new legal
cases for as long as the proposers could think up new
6.4. The Committee does not think that the Commission’s wordings or even just alter the numbering of the general
suggestion of reinforcing civil penalties is justified under terms of the contract.
present circumstances. However, it considers that, insofar as
the use of an unfair term is in itself damaging to the interests
of the other party, the burden of proof for demonstrating the
causal link and existence of damage should be reversed, 7.1.3. The Committee therefore thinks that encouragement
although it should be up to the wronged party to prove the should be given to the Commission’s efforts to:
actual degree of damage.

a) prevail on the Member States to ensure swifter and more


effective legal mechanisms for outlawing unfair terms in
contracts;
(1) Aforementioned ESC opinion of 1998, referred to many times in
the report in question.
(2) The Committee has thus replied to the points raised in Question
2 of the Commission report (p. 17).
(3) Cf. the important Court of Justice judgment of 27 July 2000 (4) The Committee has thus answered Questions 6, 7 and 8 (p. 20 of
(cases C240/98 and 244/98). the report) and Questions 13 and 14 (p. 24).
20.4.2001 EN Official Journal of the European Communities C 116/123

b) explore the possibility of defining — in line with the new 7.3. Administrative authorities who rule on the unfairness
civil law guidelines being developed in the Member States of contractual terms should be able to advise on how the
— the conditions in which a legal decision regarding a offending terms could be reworded in a fair way (2).
type of term that has been ruled unfair by the courts can
be made binding on all identical contracts proposed by
the same party and, with the necessary procedural
guarantees, by other sellers or suppliers in the same
sector, or even by any party to a contract in general;

8. The role of dialogue between professionals and


c) at the discretion of the judge and having considered the consumers
advantages gained from the infraction, oblige sellers or
suppliers who have been condemned by the courts for
using unfair terms to publicise the terms ruled unfair in
the media, insofar as such a step may help in due
course to prevent the use of unfair terms and provide
information for interested parties; 8.1. It is clear that preventing the use of unfair terms must
take priority over applying sanctions after they have been
used. Furthermore, with the single market, contracts are
increasingly being concluded across borders and standard
d) make provision for appropriate financial support mech- general terms and conditions appear in different contracts
anism for the abovementioned measures. and in different Member States. It would, therefore, seem
appropriate to consider setting up a system for extra-judicial
cooperation based on dialogue at Community level between
representatives of consumers and professionals, and among
representatives of the latter, in order to draw up joint
agreements (3).
7.2. Administrative checks

8.1.1. However, care will be needed to ensure that these


agreements cannot be considered as concerted practices which
7.2.1. Without prejudice to the points made above, the infringe competition rules. At all events, a systematic and
Committee thinks that action is needed at Community level to targeted interpretation of the relevant Treaty provisions is
establish administrative arrangements empowering an inde- unlikely to lead to condemnation of such agreements on those
pendent, competent body to rule on the unfairness of certain grounds.
terms and prohibit their use, in general, whilst still allowing
the parties concerned to contest the administrative decision in
the courts.
8.1.2. A key issue here will be the encouragement of
voluntary mechanisms for drawing up codes of conduct
including standard contracts which have been vetted for unfair
7.2.2. Experience in Member States which have this type of terms, particularly in certain more problematic sectors such as
system, such as the UK (Office of Fair Trading), France and general interest services and financial services, especially when
Belgium (Unfair Terms Commissions), or the Consumers’ they are negotiated at a distance, e.g. via the Internet.
Ombudsman in the Nordic countries, fully justifies the Com-
mission vigorously pursuing the path described in 7.2.1 above.

8.2. Extra-judicial systems could also be set up for


mediation and arbitration, and for resolving disputes concern-
7.2.3. Conversely, and consistent with the position taken ing the use of general terms and conditions, particularly in
in its 1991 opinion (1), the Committee opposes the establish- cross-border contracts and those negotiated via e-commerce.
ment of a Community ombudsman for this field because it Voluntary mechanisms can more easily be started or achieved
does not think that a body which is removed from the daily when they are associated with extra-judicial systems for
life of consumers and economic operators in their respective mediation and arbitration.
countries or regions can promptly and effectively settle the
type of disputes caused by the use of unfair terms.

(2) The Committee has thus answered Questions 9, 10, 11 and 12


(p. 23), 16 (p. 25) and 17 (p. 27) of the Commission report.
(1) Op. cit., point 2.1.7. (3) Cf. point 2.5.4 of 1991 opinion.
C 116/124 EN Official Journal of the European Communities 20.4.2001

8.2.1. The Committee believes, as a rule, that it is inappro- 10. Conclusions


priate for contracts to be subject to prior control by adminis-
trative regulatory authorities, unless essential general interest
services are at stake, as this would be extremely bureaucratic
and would in no way guarantee that these contracts did not
contain unfair terms.
10.1. Rather than merely ‘approximating’ legislation, the
main objective of any future revision of Directive 93/13/EC —
which is hopefully not far away — must be to truly harmonise
8.2.2. However, assuming that the bodies mentioned in and standardise legislation in the Member States in this area,
7.2.1 are set up, the Committee acknowledges that they should especially in fundamental areas such as the very concept of
be empowered to approve the general terms and conditions ‘unfair term’ or the drawing up of a ‘black list’ of terms.
submitted to them voluntarily by the persons proposing the
terms (1).

10.2. An essential aspect of such a revision will be to


redefine the Directive’s field of application so that it also
includes contracts between professionals which have consider-
able contractual imbalances and inequalities, particularly when
9. The CLAB database
standard or predetermined contracts are used.

9.1. The Committee once again stresses the importance of


the CLAB database initiative and the efforts of the Commission 10.3. Current exclusions should also be removed so that
to keep it up-to-date. It is not only the scientific community the Directive can also apply to contractual terms negotiated
that benefits from this database, but also the European individually, general terms and conditions arising from
institutions and the judges, lawyers and other administrative ‘mandatory’ provisions and contractual stipulations relating to
authorities who are responsible for interpreting and the price or the subject matter of the contract, providing that
implementing the domestic law deriving from the transposed these terms meet the requirements to be classified as unfair.
Directive. The database thus makes a key contribution to
comparative law studies, opening the way to the framing of
standard legislation (see point 4.4).

10.4. All necessary steps must be taken to ensure trans-


parency in contractual relations. This means declaring all
9.2. However, the Committee believes that rather than ambiguous, unclear, incomprehensible or illegible contractual
merely collecting and posting more data on the CLAB database, terms to be null and void. Particular attention should be paid
the Commission should make better use of the data that have to the compatibility of this regime with existing directives that
already been entered, i.e. by making them available in all the already make it obligatory to provide information (e.g. distance
Community languages (2) and drawing up and distributing selling, e-commerce, etc.)
global, sectoral or thematic research into the guidelines offered
by European jurisprudence on this subject (3).

10.5. The whole concept of ‘unfairness’ needs to be rede-


9.3. It would be helpful if, at appropriate intervals, the fined objectively in terms of ‘contractual imbalance’. The effect
Commission could draw up a report on the operation of the — if any — of the notion of ‘bad faith’ on the concept of an
CLAB and submit it to the Council, the European Parliament unfair term also needs to be clarified.
and the ESC.

(1) The Committee has thus answered Question 15 (p. 25) and
10.6. As for the list of terms considered unfair:
Questions 18, 19 and 20 (p. 28) of the Commission Report.
(2) Cf. the Commission Proposal for a Council Decision adopting a
Multiannual Community programme to stimulate the develop-
ment and use of European digital content on global networks and
to promote linguistic diversity in the Information Society. 10.6.1. a ‘black list’ of terms that will always be considered
(3) This answer to the Commission’s Questions 21 and 22 is unfair, irrespective of the specific circumstances surrounding
considered the most appropriate institutionally. the contract or contracting parties, should be drawn up;
20.4.2001 EN Official Journal of the European Communities C 116/125

10.6.2. a revised indicative ‘grey list’ should be kept, to be wherever such a step is likely to help prevent the terms being
used by the authorities who are responsible for ruling on the used again.
unfairness of listed terms, according to the circumstances of
the contract in which they are found; 10.11. Member States should be encouraged to set up
mechanisms allowing independent authorities to carry out
10.6.3. separate indicative lists should be drawn up for administrative checks on general terms and conditions. These
contracts between professionals and contracts with consumers, authorities should be empowered to rule on the unfairness of
and according to specific sectors of activity or essential services; these terms, prohibit their use and recommend the correct
wording, while still allowing the parties concerned to contest
10.6.4. these lists should be transposed in full into the the administrative decision in the courts.
relevant pieces of national legislation.
10.12. Arrangements for extra-judicial cooperation should
be set up at national and EU level in order to i) encourage
10.7. The nature of the offence committed by using unfair dialogue between representatives of the interested parties,
terms and the legal measures set up to deal with it should be ii) eliminate unfair or less fair clauses in general terms and
clarified, as should the possibility of automatic recognition by conditions and iii) facilitate the establishment of standard
the courts. contracts or codes of conduct. This is particularly important
in the case of general interest services and financial services,
10.8. When a particular unfair term has been the subject of and in contracts that have been negotiated at a distance, e.g.
an injunction, it may be appropriate to consider extending the via the Internet.
decision to other identical cases, without prejudice to the
appropriate procedural guarantees. 10.13. Member States could adopt uniform standards of
reference or ‘framework laws’ for defining standard sectoral
contracts, either on their own initiative or with appropriate
10.9. Member States must be prevailed upon to ensure Commission involvement. This possibility needs to be assessed.
effective and efficient legal mechanisms for prohibiting the use
of unfair terms.
10.14. Finally, encouragement should be given to maintain
the CLAB database and ensure it is continually updated, while
10.10. At the discretion of the judge, sellers and suppliers exploring its true potential and improving access to it, notably
who have been condemned for using unfair terms must be by increasing the number of languages in which data are
obliged to publish the relevant legal decisions in the media, available.

Brussels, 30 November 2000.

The President
of the Economic and Social Committee
Göke FRERICHS
C 116/126 EN Official Journal of the European Communities 20.4.2001

APPENDIX

to the Opinion of the Economic and Social Committee

The following amendments, which received at least one quarter of the votes cast, were defeated during the debate:

Points 3.1 to 3.5

Replace with the following:

‘The 1993 directive addresses unfair terms in consumer contracts. The question arises as to whether the directive’s
scope should be extended to cover unfair terms in contracts governing relations between professionals.

There are several reasons why such an extension would be undesirable.

Contractual freedom must be allowed between professionals. Otherwise, the system of ordinary contract law could
be totally undermined. Moreover, it would be totally misguided to extend to professionals a text that was designed
exclusively from a consumer protection point of view.’

Reason

Relations between professionals are totally different from those between professionals and consumers: the parties are
on an equal footing and ordinary contract law should apply.

The fact that one or other of the Member States may depart from this rule does not justify an extension to the entire
European Community.

Even if regulatory measures were envisaged, they would have no place whatsoever in the directive in question; all the
more so if the plan was to include individually negotiated terms.

Result of the vote

For: 48, against: 51, abstentions: 4.

Points 3.6 to 3.6.2

Replace with the following:

‘A further question on the agenda in this context is that of whether individually negotiated contract terms should be
excluded.

Here, it should be noted that the directive applies to contracts covering all products and services, including those that
are not mass produced.

In the case of the latter, in view of the way in which the market in question is organised, the consumer can negotiate
the terms himself, or even have the seller accept his own terms. Such terms must be excluded from the scope of the
directive. Broadening application to all terms with no distinction could lead to a paradoxical situation where the
consumer, noticing that the contract that he himself proposed is open to differing interpretations, could choose to
apply the one most favourable to himself, although it was he who had drafted the term.’

Result of the vote

For: 63, against: 66, abstentions: 2.

Points 4.2 to 4.3

Delete.
20.4.2001 EN Official Journal of the European Communities C 116/127

Reason

Good faith is a well-known, fundamental principle of ordinary contract law in the Member States, and of common
law. This concept does not require special treatment in the directive. Point 4.3 refers to inherent technical and legal
difficulties that explain why the Commission is not taking a stance on the matter either.

Result of the vote

For: 52, against: 70, abstentions: 7.

Point 4.4

Delete.

Reason

US experience with the drafting of framework or standard laws cannot be transposed directly to the European Union.
In contrast to the European Union, the United States share uniform legal concepts.

Furthermore, a sectoral approach could generate more confusion than clarity for the consumer in certain sectors.

Result of the vote

For: 46, against: 73, abstentions: 6.

Point 6.4

Delete the second sentence.

Reason

There is no need to reverse the burden of proof to demonstrate a causal link and the existence of damage in favour
of the consumer. Such a move would go beyond the liability system established by the product liability directive,
which states that it is up to the victim to provide proof of a fault in a product, of damage and of a causal link
between the two.

Furthermore, this type of provision has no place in a directive that is not concerned with damage compensation.

Result of the vote

For: 48, against: 67, abstentions: 8.

Points 7.1.2. b and 7.1.3.b

Delete.

Reason

The principle that a judgment is binding on the parties to the proceedings and not on others is an essential legal
principle in most Member States and must be upheld.

Furthermore, the Commission cannot be asked to look into this issue as it has no power to intervene in civil
procedure (see paragraphs 2 and 3 of Article 3b of the EC Treaty).

Result of the vote

For: 51, against: 74, abstentions: 6.