Research Handbooks in European Law series
Edited by Christian Twigg-Flesner
Chapter 13: Unfair contract terms
Standard terms are a familiar topic in consumer law and in contract law in general. Member State courts had dealt with them using concepts of general consumer law, such as immorality or good faith, and national legislators had adopted specific laws regulating standard terms, often but not necessarily limited to the business-to-consumer relationship. At EU level, standard terms have been regulated by the Unfair Contract Terms Directive 93/13/EEC(Section B). That Directive is, however, incomplete in that it does not touch on the incorporation of standard terms, and the rules on incorporation differ slightly between Member States. It also does not set absolute standards but allows Member States to adopt or maintain more stringent rules related to the protection of consumers (Article 8), and many Member States indeed provide for increased consumer protection in this area. In its 2008 Proposal for a Directive on Consumer Rights, the EU Commission made an attempt to fully harmonise control of unfair contract terms in consumer contracts but failed. A further attempt was made with Chapter 8 of the proposed Common European Sales Lawthat would have included, amongst other things, a black list and grey list of unfair contract terms, but it has been withdrawn by the European Commission (Section C).
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