COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(93) 11 final - SYN 285 
Brussels, 26 January 1993 
Re-examined proposal for a 
COUNCIL DIRECTIVE 
on unfair terms in consumer contracts 
(presented by the Commission pursuant to Article 149.2(d) 
of the EEC treaty) 
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E x p I ana t or y itsroor andum 
On 15 and 16 December 1992, the European Parliament concluded its second 
reading of the proposal for a Council Directive on unfair terms in 
consumer contracts and proposed 7 amendments to the common position 
adopted by the Council of Ministers on 22 September 1992. 
The text of the reexamined proposal clearly incorporates amendments 3 and 
5, as well as the spirit of amendment 4. The 17th and 21st recitals have 
been modified on the basis of the amendments to the provisions of the 
Direct ive. 
Amendments 1, 2, 6 and 7 have been rejected by the Commission. 
Amendment 3 reintroduces the second general criterion for assessing 
whether contract terms are unfair, which had been deleted from the 
Commission's amended proposal (March 92). 
According to this criterion, a term is regarded as unfair if, contrary to 
the requirement of good faith, it causes the performance of the contract 
to be significantly different from what the consumer could legitimately 
expect. Although it could be argued that this situation is, to some 
extent, already covered by the criterion contained in the common 
position, the inclusion of this second criterion could help to clarify 
the meaning of the phrase "unfair term". It also has the advantage of 
showing clearly that the requirement of good faith Is not restricted to 
the circumstances prevailing at the time the contract is drawn up but 
extends to the probable consequences of its performance for the consumer. 
Amendment 5 is chiefly concerned with wording. The provision in Article 
6(1) of the common position (that unfair terms shall be void) is intended 
specifically to ensure that no unfair term may be enforced to the 
detriment of a consumer. The precise legal classification (relative or 
absolute nullity, non-existence, "voidance", etc.) should be left to the 
legal system in each Member State. It appears that the term "void" is 
still not sufficiently neutral. This is why the new wording "not bind the 
consumer" has been proposed. 
Amendment 4 concerns the legal nature of the Annex and aims to 
reintroduce the principle of a "blacklist", in other words a list of 
terms always regarded as unfair. However, this is somewhat ill-suited to 
the present wording of the Annex, chiefly because of the discret ionary 
terms contained in many of its clauses. 
Furthermore, the discussions within the Council showed that the majority 
of Member States would not readily accept a completely "black" list. 
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However, the solution envisaged in the common position is not entirely 
satisfactory either. The idea of an "indicative" list is too vague to 
give a clear indication of the aims. This vagueness would also make the 
transposition of this part of the text more difficult. 
In view of this, the Commission feels that it would be useful to give the 
Annex more specific legal force, and has therefore incorporated the 
spirit of amendment 4 by adopting the principle of a list of types of 
term presumed to be unfair. Generally speaking, all terms listed can be 
presumed to be unfair, but this presumption may be contested by a seller 
or supplier who uses this type of term in specific situations. 
AI I the other amendments adopted by the EP were rejected by the 
Commission. 
Amendments 1 and 2 are based on the idea that the word "mandatory" is 
used in this case, as it is in civil law, as distinct from 
"supplementary", and are thus aimed at eliminating the contradiction 
between Article 1(2) and the 13th recital. In fact, there is no real 
contradiction because the distinction made in civil law has no relevance 
to the way in which the term "mandatory" is used in Article 1(2), where 
it has a more general meaning. 
Amendment 6 is inadequate for the aims of the Directive. To replace the 
obligation on Member States to ensure the existence of "adequate and 
effective means ... to prevent the continued use of unfair terms" by the 
obligation to "prohibit" unfair terms does not necessarily increase 
consumer protection. Furthermore, the discussions within the Council 
showed that the word "prohibit" would make it difficult to determine 
whether penal sanctions should be imposed. Although the control of unfair 
terms by means of penal law may be an effective means of implementing the 
Directive, the Commission considers that it is by no means the only 
adequate way to eliminate the use of unfair terms. 
Finally, Amendment 7 aims to introduce a 14-day "cooling-off" period for 
the consumer, following the signing of timeshare contracts. Although a 
similar provision was included in the Commission's first proposal, the 
Commission has in the meantime presented a specific proposal for a 
Directive aimed at providing protection for consumers in relation to 
contracts on the use of timeshare property (Com (92) 220 final of 
24.7.92). 
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The proposal for a Directive already incorporates the principle of a 
"cooling-off" period, in some cases even longer than that requested by 
the European Parliament, while at the same time guaranteeing the consumer 
much fuller protection. 
Furthermore, Amendment 7 is not now appropriate to the current text of 
the common position. 
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Reexamined proposal for a Council Directive 
on unfair terms in consumer contracts 
(presented by the Commission pursuant to Article 149(2)(d) of the EEC 
Treaty) 
Common position of the Council Reexamined proposal 
First to sixteenth recitals unchanged 
Seventeenth recital Seventeenth recital 
Whereas, for the purposes of this 
Directive, the annexed list of terms 
can be of an indicative value only 
and, because of the minimal 
character of the Directive, the 
scope of these terms may be the 
subject of amplification or more 
restrictive editing by the Member 
States in their national law; Whereas, for the purposes of this 
Directive, a list of terms presumed 
unfair should be provided in an 
Annex ; whereas, furthermore. 
because of the minimal character of 
the Direct ive. the scope of these 
terms may be the subject of 
amplification or more restrictive 
editing by the Member States in 
their national law; 
Eighteenth to twentieth recitals unchanged 
Twenty-first recital Twenty-first recital 
Whereas the Member States should 
ensure that unfair terms are not 
used in contracts concluded with 
consumers by a seller or supplier 
and that if, nevertheless, such 
terms are so used, they shall at 
least be declared void as against 
the consumer, and the contract shall 
continue to bind the parties upon 
those terms if it is capable of 
continuing in existence without the 
unfair provisions; Whereas the Member States should 
ensure that unfair terms are not 
used in contracts concluded with 
consumers by a seller or supplier 
and that if, nevertheless, such 
terms are so used, they shalI not 
bind the consumer and the contract 
shall continue to bind both parties 
upon those terms if it is capable 
of continuing in existence without 
the unfair provisions-, 
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Counc i1's common pos i t i on Reexamined proposai 
Twenty-first to twenty-fourth recitals unchanged 
Articles 1 and 2 unchanged 
Art icle 3 Article 3 
1. 
1. A contractual term which has not 
been individually negotiated shall 
be regarded as unfair if, contrary 
to the requirement of good faith, it 
causes a significant imbalance in 
the parties' rights and obligations 
arising under the contract, to the 
detriment of the consumer. 1. 
1. A contractual term which has not 
been individually negotiated shall 
be regarded as unfair if, in spite 
of the requirement of good faith: 
- it causes a significant imbalance 
in the parties' rights and 
obligations arising under the 
contract, to the detriment of the 
consumer 
or 
2. - it causes the performance of the 
contract to be significantly 
different from what the consumer 
could legitimately expect. 
2. unchanged 
3. The Annex shall contain an 
indicative list of the terms which 
may be regarded as unfair. 3. The Annex shall contain a list 
of terms presumed to be unfair. 
Art icle 6 Articles 4 and 5 unchanged 
Art icle 6 
1. 
Member States shall lay down that 
unfair terms used in a contract 
concluded with a consumer by a 
seller or supplier shall, as 
provided for under their national 
law, be void as against the consumer 
and that the contract shall continue 
to bind the parties upon those terms 
if it is capable of continuing in 
existence without the unfair terms. 1. 
Member States shall lay down that 
unfair terms used in a contract 
concluded with a consumer by a 
seller or supplier shall, as 
provided for under their national 
law, not bind the consumer and that 
the contract shall continue to bind 
the parties upon those terms if it 
is capable of continuing in 
existence without the unfair terms. 
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Council's joint position 
2. Reexamined proposa 
2. unchanged 
Articles 7 to 11 unchanged 
Annex unchanged 
European Parliament amendments rejected by the Commission 
(Amendment 1) 
Thirteenth recital 
...whereas in that respect the 
wording "mandatory, statutory or 
regulatory provisions" in Article 
1(2) also covers rules which, 
according to the law, shall apply 
between the contracting parties 
provided that no other arrangements 
have been established; Deleted 
(Amendment No 2) 
Article 1(2) 
The contractual terms which reflect 
mandatory, statutory or regulatory 
provisions and the provisions or 
principles of international 
conventions to which the Member 
States or the Community are party, 
particularly in the transport area, 
shall not be subject to the 
provisions of this Directive. The contractual terms which reflect 
statutory or regulatory provisions 
and the provisions or principles of 
international conventions to which 
the Member States or the Community 
are party, particularly in the 
transport area, shall not be 
subject to the provisions of this 
Direct ive. 
(Amendment 6) 
Article 7(1) 
The Member States shall ensure that, 
in the interests of consumers and of 
competitors, adequate and effective 
means exist to prevent the continued 
use of unfair terms in contracts 
concluded with consumers by sellers 
or SUPPIiers. The Member States shall prohibit 
the use of unfair terms in any 
contract concluded with a consumer 
by any person acting in the course 
of his trade, business or 
profession: this prohibition shall 
be without prejudice to the 
seller's right to obtain 
compensation from his own supplier 
(Amendment 7) 
Annex, paragraph 1, indent g)a (new) 
in the case of contracts relating 
to the purchase of immovable 
properties on à timeshare basis, 
establishing the date on which the 
contract is concluded in such a way 
as to make it impossible for the 
consumer to terminate the contract 
within a period of 14 clear days 
from the date on which it was 
concluded. 
ISSN 0254-1475 
COM(93) 11 final 
DOCUMENTS 
EN 10 06 
Catalogue number : CB-CO-93-015-EN-C 
ISBN 92-77-51948-7 
Office for Official Publications of the European Communities 
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