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"
Date: 2000-11-30
Institutions: European Economic and Social Committee
Subjects: approximation of laws, consumer protection, contract, unfair terms of contract

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 Ataı´de 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

law systems, whether or not

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
European civil
they derive
from the Napoleonic code. They were designed to regulate
contractual relations justly and equitably, particularly those
with private individuals. The insufficiency of these principles
came to light in the industrial era with the emergence of
standard or predetermined contracts (1). Such contracts are
distinguished (a) by the fact that one of the parties occupies a
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
of the stronger party, and (c) by the fact that the wording of
the contract cannot be changed, so that the only choice open
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.

1.2.
Various European countries have framed specific pro-
visions, either as separate pieces of legislation or as parts of
their civil codes, to end the unfairness caused by the use of
certain types of contractual clauses which created an imbalance
between the contracting parties. These provisions are aimed
more especially at
terms and conditions’ of
predetermined contracts. Examples include the Danish law on
trading practices (1974), the German ‘AGB-Gesetz’ (December
1976), the UK ‘Unfair Contract Terms Act’ (1977), the Irish

the ‘general

‘Sale of Goods and Supply of Services Act’
the
Luxembourg law of 1983 identifying 20 types of unfair terms;
and the 1985 Portuguese law on general contract terms.

(1980),

At European level, the Council of Europe drew up a
1.3.
recommendation on unfair terms in contracts as long ago as
16 November 1976 (3). At EU level, the matter was first raised
in the first consumer policy programme (4);
in the second
programme (1981) the Council explicitly asked the Com-
mission to draw up a discussion paper on the subject (5). The
Commission responded with a communication to the Council
on 14 February 1984(6).

1.4.
The Commission issued its formal proposal on 27 July
1990. This subsequently became Directive 93/13/EC of 5 April
1993 (7).

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
or supplier and a consumer’, it being necessary to ‘remove
unfair terms’ from such contracts, according to ‘assessment
criteria’ or ‘uniform rules’, ‘in order to facilitate the establish-
ment of the internal market and to safeguard the citizen in his
role as consumer when acquiring goods and services under
contracts which are governed by the laws of Member States
other than his own’.

(1) The French jurist Saleilles coined the term ‘contrats d’adhésion’
in 1901 for proposed contracts in which the content was
predetermined and non-negotiable. The term is now firmly
established in the Latin countries, while countries with common
law systems use the term ‘standard form contract’.

(2) This is the definition of Carbonnier, in ‘Droit Civil’, 6th ed, T4,

1969, p. 53.

(3) Council of Europe Resolution 76(47) of 16.11.1976.
(4) Approved by Council Resolution of 14.4.1975.
(5) Point 30: ‘The Commission will submit, as a first step, a discussion
paper in which it will set out all the problems which this subject
involves and the various options open with a view to harmonising
those aspects of competition which may be affected by disparities
in this area.’ (Bulletin of the EC 5/81).

(6) COM (84) 55 final — Bulletin of the EC — Supplement 1/ 84.
(7) OJ L 95, 21.4.1993.

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1.6.

The Directive expressly excludes:

— contracts concluded between sellers or suppliers;

— contracts concluded between consumers;

— employment contracts;

— contracts relating to succession rights and rights under

family law;

— contracts relating to the incorporation and organisation

of companies.

The minimalist approach enshrined in Article 8 of the
1.7.
Directive gave Member States the option of excluding the
following from their transposition provisions:

— terms which had been negotiated individually;

— terms which reflect mandatory statutory or regulatory
provisions and the principles or provisions of inter-
national conventions;

— 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,
provided the terms are in plain intelligible language.

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
significant imbalance in the parties’ rights and obligations’
(‘grey list’).

1.9.
Lastly, the Directive states that Member States are to
ensure that ‘adequate and effective means exist to prevent the
continued use of unfair terms’, including provisions whereby
‘persons or organisations, having a legitimate interest under
national law in protecting consumers’ may take action ‘before
the courts or before competent administrative authorities for
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’.

1.11.
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,
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
officials of the Community institutions (1).

1.12.
Article 9 of the Directive requires the Commission to
present a report to the European Parliament and the Council
by 31 December 1999 ‘concerning the application of the
Directive’. This report was published on 27 April 2000, and
forms the subject of the present opinion.

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
penalising of the use of unfair terms in consumer contracts,
but also of the way in which they are transposed, implemented
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.

2. Assessment of the Commission report

2.1.
The report is of a high technical standard and is well
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.

2.2.
The Committee also notes the report’s effort to sum-
marise the various points made during debates at the abov-
ementioned conference of 1 to 3 July 1999, and especially the
listing of key issues as they emerged from those debates.

2.3.
The Committee appreciates the work the Commission
has carried out over the years, not only with the sectoral
analysis of the decisions of relevant national bodies which
have judged certain types of terms in contracts to be unfair
(their work too is acknowledged) but also through the setting-

1.10. Member States were to transpose the Directive by
31 December 1994.

(1) The conference proceedings can be consulted on a 356-page
Internet site http://eu.int/comm/dgs/health consumer/events/event
29 01.pdf). The conclusions, summarised by the Head of Unit of
DG XXIV, can be found on pp. 232 ff.

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up of the CLAB (1) database, which is proving useful for
mapping the situation at Community level. When the Com-
mittee gave its views on the draft directive in 1991 (2),
it
thought it essential to develop a notification system to monitor
the application of the arrangements to be set up; it is therefore
especially pleased to see its proposal vindicated.

2.8.
In keeping with its past views on these matters, the
Committee cannot accept that the review of the Directive be
used as an excuse to weaken the protection which it has
afforded EU consumers, as such a step is prohibited by the
Treaty (Article 2 and Article 153(1)).

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
mentioned) and the careful and judicious way in which
questions are posed throughout the report.

In this context,

2.9.
following key issues:

the present opinion analyses the

a)

field of application of the Directive;

b)

definition of the general underlying principles;

It is clear that at EU level, notwithstanding the late

2.5.
transposition of the Directive by some Member States:

c)

typology and nature of the list of terms considered unfair;

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

nature and scope of the Directive’s precepts;

f)

role of dialogue between professionals and consumers;

g)

importance and future of CLAB.

c)

the transposition provisions are not applied equally
effectively in all Member States.

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
the Directive which enables some Member States to set up
stricter (but unharmonised) consumer protection regimes.
Such a situation is hardly conducive to completion of the
single market.

2.7.
The Committee should focus not so much on the
information about existing arrangements and their application,
but rather on considering proposals to amend and reformulate
the system. At the same time, it should take into account,
the various questions raised by the
among other issues,
Commission (3) and reaffirm (or,
if necessary, abandon) its
previous positions on the issue (4).

(1) Database on unfair terms.
(2) OJ C 159, 17.6.1991, pp. 34 ff., point 2.1.4.
(3) A closer scrutiny shows that the 22 questions on which the
Commission report encourages debate and invites opinions and
suggestions are in fact 33. As already noted, the Committee
should not answer each question but adopt a stance on the most
important ones.

(4) Cf. in particular the Own-Initiative Opinion of 1998 on Con-

sumers in the insurance market, OJ C 95, 30.3.1998.

3.

The field of application of the Directive

The first issue that must be raised concerns the scope

3.1.
of the arrangements in question.

the use of unfair contract

While it is understandable from a historical point of view that
protection against
terms was
originally intended exclusively for consumers in their dealings
with professionals, Article 65 of the Treaty of Amsterdam (5)
today provides a legal basis for considering the issue in its
wider context.

(5) Measures in the field of judicial cooperation in civil matters
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
judicial documents;
— cooperation in the taking of evidence;
— the recognition and enforcement of decisions in civil and
commercial cases, including decision in extra-judicial cases;
(b) promoting the compatibility of the rules applicable in the
Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceed-
ings, if necessary by promoting the compatibility of the rules on
civil procedure applicable in the Member States.

land extra-

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In some types of contract

there is a contractual
3.2.
imbalance and material
inequality between the concluding
parties, as their content is proposed by one of the parties and
the other party can merely accept or reject its wording. This
situation is found not only in relations between professionals
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-
fessionals and associations. Moreover, some Member States
have already adopted legislation on unfair contract terms
which is much broader than that envisaged in the Directive,
covering relations between private parties which do not
constitute consumer relations, as well as relations between
professionals.

by the consumer,
‘mandatory’ provisions and contractual
stipulations relating to the price and subject matter of the
contract. Most Member States, however, have not transposed
these exclusions, to the clear benefit of ensuing consumer
protection arrangements.

3.6.2.
The fact that most Member States do not apply the
exclusions aggravates the legislative divergences at Community
level (unharmonised national
legislation). This impedes the
smooth operation of the single market, notably as regards
competition (3).

3.3.
It does not, therefore, seem justified that existing
arrangements for preventing and punishing the use of unfair
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).

3.4.
If the Commission intends not to significantly extend
the scope of the Directive in this light, it should, as a first step,
in those
at least provide for mandatory ‘reflex-application’
cases where a clause which is abusive in a ‘consumer-business’
contractual relation is also part of a ‘business to business’
contractual relation at an earlier stage in the distribution chain.

3.5.
This does not mean, however, given the special nature
of consumer relations, that contracts in which one of the
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
example, between absolute prohibitions and relative prohib-
itions or arrangements for identifying unfairness (unofficial
recognition by the relevant authority or reversal of the burden
of proof).

3.6.
Furthermore, the Commission rightly considers some
of the exclusions (2) found in the current arrangements to be
unjustified.

3.6.1.
This applies in particular to exclusions concerning
contractual terms which have been individually negotiated

(1) OJ C 159, 17.6.1991, point 2.3.3.
(2) Listed in point 1.7 above.

4. Definition of general principles

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.

4.1.1.
This is the case with the principle of transparency,
the notion and function of which are not entirely clear in the
current wording, especially in terms of its consequences for
the course of the contract.

4.1.2.
unequivocally that:

Clarity would be improved if the Directive stated

a)

b)

terms which are not individually negotiated can only be
considered as being accepted by the consumer if the latter
has had the opportunity to study them and understand
their implications before concluding the contract; and

contractual terms must be drafted plainly, clearly and
unambiguously, so that they are understandable to the
average consumer applying the normal diligence of
a ‘bonus pater familias’;
if terms do not meet these
requirements, they must be considered null and void (4).

(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
conference.

(4) As the ESC stated in point 2.5.3 of the abovementioned opinion.

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4.1.3.
In the interests of transparency, the legislation should
specify the obligations incumbent on contracting parties
who fail to meet the obligation to provide pre-contractual
information in cases where non-negotiable general contractual
terms are proposed. This is particularly important in the
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).

4.2. More importantly, however, the principle of good faith
and how it relates to the notion of contractual imbalance also
need to be clarified at Community level if its transposition is
not to lead to different, if not divergent, national provisions,
as occurs today.

difficulties, the Committee urges the Commission to reach a
position on the matter so as to clarify the meaning and content
of these basic concepts, so that the Directive can be transposed
into national law unambiguously and in a properly harmonised
manner.

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
should be to make more substantive progress towards real
convergence of national legislation, at least as regards sectoral
aspects (e.g.
interest
services) and thus to help overcome the difficulties caused by
the existence, within the EU, of legal systems based on differing
concepts.

insurance, banking, transport, general

At

the July 1999 conference,

the various possible meanings of

there was much
4.2.1.
the
discussion about
expression ‘contrary to the requirement of good faith’
in
Article 3(1) of the Directive. The translations of this expression
in the various language versions differ, and in some cases are
diametrically opposed (3).

4.2.2.
It is also not clear what constitutes the ‘significant
imbalance’ that is mentioned as a further requirement, above
and beyond the requisite ‘good faith’.

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
criterion for determining whether a term is unfair. Although
theoretical, this question has obvious practical implications
when applying the relevant legislation.

5.

Typology and nature of the lists of unfair terms

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
(black list) or ‘relatively’ prohibited (grey list).

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.

5.1.2.
The Committee thinks that the black list should be
restricted to cases in which the unfair nature is unanimously
recognised in the legislation of all Member States as violating
generally accepted principles, in any type of contract.

4.3.
stance on this. Despite the inherent

The Commission report does not adopt a specific
technical and legal

5.2.
Irrespective of their indicative or binding nature, the
black and grey lists should be transcribed in full in the legal
acts transposing the Directive.

(1) ibid. point 2.5.
(2) The Committee has thus answered Questions 3, 4 and 5 of the

Commission report (p. 18-19 of the English version).

(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).

5.3.
The binding nature of the black list and the purely
indicative nature of the grey list should be clearly specified in
the legislative text. The current situation is unsatisfactory, as
the Committee has already pointed out (4).

(4) 1991 opinion, point 2.8.

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5.4.
The content of the lists should also be revised in the
light of experience. Lists of terms could also be drawn up
according to the main types of contract concerned (e.g.
banking services, insurance (1), time-shares, package holidays,
etc.) (2).

6.5.
Lastly, the establishment of additional penalties in the
form of a ‘mandatory financial penalty’ only appears justified
if the person proposing the terms, after receiving an injunction,
wilfully continues to use or recommend terms which have
been definitively banned by a court ruling (4).

6. Nature of the offence and its consequences

7. Arrangements for preventing or stopping the use of

unfair terms

6.1.
As the Commission acknowledges in its report, current
arrangements fail, in particular, to give a proper legal definition
of the offence of using unfair terms and its consequences.

7.1. Limitations of the legal system and possible ways of improving

it

By merely stating that unfair terms ‘shall not be binding on the
consumer’, Article 6 of the Directive allowed Member States
to establish different penalties for the use of unfair terms,
according to their particular legal traditions (e.g. non-existence,
nullity, revocability, voidability, non-recognisability or unen-
forceability of the terms concerned).

In most Member States, the only way of preventing
7.1.1.
the use of unfair terms is through the courts. At the July
1999 conference, specialists all agreed that the legal controls
implemented in the various countries are unsatisfactory and
the use of unfair terms in
ineffective for stamping out
contracts.

Just as the civil penalty systems vary, so do their
6.2.
consequences, notably as regards binding the parties, the time
when the effects are produced, and the possibility of automatic
recognition by the courts (3).

6.3.
The Committee therefore recommends that the revised
Directive include a clear definition of the type of civil penalties
that may be imposed for using unfair terms, their effect
on contracts that include them (total or partial
invalidity,
unenforceability, reduction, etc.), and the possibility of auto-
matic recognition by the courts.

6.4.
The Committee does not think that the Commission’s
suggestion of reinforcing civil penalties is justified under
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,
although it should be up to the wronged party to prove the
actual degree of damage.

7.1.2.

The main problems were felt to be:

a)

b)

c)

the slowness of legal proceedings, even when a special
accelerated procedure is used;

the general rules governing the scope and effect of each
case, which in theory are limited to the contract or term
involved and the seller or supplier who has used it;

in the course of

the possibility that,
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
wordings or even just alter the numbering of the general
terms of the contract.

7.1.3.
should be given to the Commission’s efforts to:

The Committee therefore thinks that encouragement

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).

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b)

c)

explore the possibility of defining — in line with the new
civil law guidelines being developed in the Member States
— the conditions in which a legal decision regarding a
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;

at the discretion of the judge and having considered the
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;

d) make provision for appropriate financial support mech-

anism for the abovementioned measures.

7.2. Administrative checks

7.2.1. Without prejudice to the points made above, the
Committee thinks that action is needed at Community level to
establish administrative arrangements empowering an inde-
pendent, competent body to rule on the unfairness of certain
terms and prohibit their use, in general, whilst still allowing
the parties concerned to contest the administrative decision in
the courts.

Experience in Member States which have this type of
7.2.2.
system, such as the UK (Office of Fair Trading), France and
Belgium (Unfair Terms Commissions), or the Consumers’
Ombudsman in the Nordic countries, fully justifies the Com-
mission vigorously pursuing the path described in 7.2.1 above.

7.2.3.
Conversely, and consistent with the position taken
in its 1991 opinion (1), the Committee opposes the establish-
ment of a Community ombudsman for this field because it
does not think that a body which is removed from the daily
life of consumers and economic operators in their respective
countries or regions can promptly and effectively settle the
type of disputes caused by the use of unfair terms.

7.3.
Administrative authorities who rule on the unfairness
of contractual terms should be able to advise on how the
offending terms could be reworded in a fair way (2).

8.

The role of dialogue between professionals and
consumers

It is clear that preventing the use of unfair terms must
8.1.
take priority over applying sanctions after they have been
used. Furthermore, with the single market, contracts are
increasingly being concluded across borders and standard
general terms and conditions appear in different contracts
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
in order to draw up joint
representatives of
agreements (3).

the latter,

8.1.1.
However, care will be needed to ensure that these
agreements cannot be considered as concerted practices which
infringe competition rules. At all events, a systematic and
targeted interpretation of the relevant Treaty provisions is
unlikely to lead to condemnation of such agreements on those
grounds.

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
terms, particularly in certain more problematic sectors such as
general interest services and financial services, especially when
they are negotiated at a distance, e.g. via the Internet.

Extra-judicial

8.2.
systems could also be set up for
mediation and arbitration, and for resolving disputes concern-
ing the use of general terms and conditions, particularly in
cross-border contracts and those negotiated via e-commerce.
Voluntary mechanisms can more easily be started or achieved
when they are associated with extra-judicial systems for
mediation and arbitration.

(1) Op. cit., point 2.1.7.

(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.

(3) Cf. point 2.5.4 of 1991 opinion.

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

8.2.2.
However, assuming that the bodies mentioned in
7.2.1 are set up, the Committee acknowledges that they should
be empowered to approve the general terms and conditions
submitted to them voluntarily by the persons proposing the
terms (1).

9.

The CLAB database

9.1.
The Committee once again stresses the importance of
the CLAB database initiative and the efforts of the Commission
to keep it up-to-date. It is not only the scientific community
that benefits from this database, but also the European
institutions and the judges, lawyers and other administrative
interpreting and
responsible
authorities who are
implementing the domestic law deriving from the transposed
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).

for

9.2.
However, the Committee believes that rather than
merely collecting and posting more data on the CLAB database,
the Commission should make better use of the data that have
already been entered, i.e. by making them available in all the
Community languages (2) and drawing up and distributing
global, sectoral or thematic research into the guidelines offered
by European jurisprudence on this subject (3).

10. Conclusions

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
and standardise legislation in the Member States in this area,
especially in fundamental areas such as the very concept of
‘unfair term’ or the drawing up of a ‘black list’ of terms.

An essential aspect of such a revision will be to
10.2.
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
standard or predetermined contracts are used.

10.3.
Current exclusions should also be removed so that
the Directive can also apply to contractual terms negotiated
individually, general
terms and conditions arising from
‘mandatory’ provisions and contractual stipulations relating to
the price or the subject matter of the contract, providing that
these terms meet the requirements to be classified as unfair.

10.4.
All necessary steps must be taken to ensure trans-
parency in contractual relations. This means declaring all
ambiguous, unclear, incomprehensible or illegible contractual
terms to be null and void. Particular attention should be paid
to the compatibility of this regime with existing directives that
already make it obligatory to provide information (e.g. distance
selling, e-commerce, etc.)

9.3.
It would be helpful if, at appropriate intervals, the
Commission could draw up a report on the operation of the
CLAB and submit it to the Council, the European Parliament
and the ESC.

The whole concept of ‘unfairness’ needs to be rede-
10.5.
fined objectively in terms of ‘contractual imbalance’. The effect
— if any — of the notion of ‘bad faith’ on the concept of an
unfair term also needs to be clarified.

(1) The Committee has thus answered Question 15 (p. 25) and
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.

(3) This answer to the Commission’s Questions 21 and 22 is

considered the most appropriate institutionally.

10.6.

As for the list of terms considered unfair:

a ‘black list’ of terms that will always be considered
10.6.1.
unfair, irrespective of the specific circumstances surrounding
the contract or contracting parties, should be drawn up;

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10.6.2.
a revised indicative ‘grey list’ should be kept, to be
used by the authorities who are responsible for ruling on the
unfairness of listed terms, according to the circumstances of
the contract in which they are found;

10.6.3.
separate indicative lists should be drawn up for
contracts between professionals and contracts with consumers,
and according to specific sectors of activity or essential services;

10.6.4.
relevant pieces of national legislation.

these lists should be transposed in full

into the

10.7.
The nature of the offence committed by using unfair
terms and the legal measures set up to deal with it should be
clarified, as should the possibility of automatic recognition by
the courts.

10.8. When a particular unfair term has been the subject of
an injunction, it may be appropriate to consider extending the
decision to other identical cases, without prejudice to the
appropriate procedural guarantees.

10.9. Member States must be prevailed upon to ensure
effective and efficient legal mechanisms for prohibiting the use
of unfair terms.

10.10.
At the discretion of the judge, sellers and suppliers
who have been condemned for using unfair terms must be
obliged to publish the relevant legal decisions in the media,

Brussels, 30 November 2000.

wherever such a step is likely to help prevent the terms being
used again.

10.11. Member States should be encouraged to set up
mechanisms allowing independent authorities to carry out
administrative checks on general terms and conditions. These
authorities should be empowered to rule on the unfairness of
these terms, prohibit their use and recommend the correct
wording, while still allowing the parties concerned to contest
the administrative decision in the courts.

Arrangements for extra-judicial cooperation should
10.12.
be set up at national and EU level in order to i) encourage
dialogue between representatives of the interested parties,
ii) eliminate unfair or less fair clauses in general terms and
conditions and iii) facilitate the establishment of standard
contracts or codes of conduct. This is particularly important
in the case of general interest services and financial services,
and in contracts that have been negotiated at a distance, e.g.
via the Internet.

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
Commission involvement. This possibility needs to be assessed.

10.14.
Finally, encouragement should be given to maintain
the CLAB database and ensure it is continually updated, while
exploring its true potential and improving access to it, notably
by increasing the number of languages in which data are
available.

The President

of the Economic and Social Committee

Göke FRERICHS

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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.

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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.