The Proposal on Consumer Rights and the Opportunity for a Reform of European Unfair Terms Legislation in Consumer Contracts

Abstract

Unfair contract terms legislation is more than forty years old. Member States started regulating unfair contract terms from the 1970s onwards with a growing intensity. In 1993 the European Community adopted, after a lengthy discussion, Directive 93/13/EEC on unfair contract terms in consumer contracts. At least since 1993 unfair terms legislation in Europe provides for a rather unique combination on substantive rules on fairness and procedural rules on eliminating unfair terms from the market either via the judiciary and or via competent administrative authorities. The current debate on a possible reform of the Directive 93/13/EC provides the opportunity to draw the attention to four underresearched issues (I) the need to link collective and individual enforcement – where there is no room for full harmonisation; (II) the strive for widening the scope ratio materiae of the Directive/Proposal; (III) the search for a realisable and manageable combination of black and grey lists with a general clause and (IV) the inclusion of a skimming off procedure into the action for injunction