This chapter examines the unfairness test of the UCTD. It analyses
the limitations associated with the contextual approach to standard
contract regulation, contrasting this with the standard contract
model that adopts an abstract approach without emphasizing the
context or status of the parties. The chapter analyses the general
clause in Article 3 of the UCTD and contains discussion of the case
law of the CJEU on the meaning of 'significant imbalance' and 'good
faith'. The chapter also provides recommendations allowing for
consistency of decision-making to encourage concretisation of the
concepts underlying the general clause and to achieve a more uniform
application of the unfairness test. The measures discussed include
strengthening and revising the indicative list in the Annex,
adopting a European black list of terms, revival of the CLAB
database and establishing a European agency for unfair terms. The
chapter asserts that these measures are necessary to allow for
decisions to have wider impact beyond the confines of individual
litigation and to assist with administrative enforcement in the
collective interests of consumers, measures that are essential to
protect consumers in the online mass market.
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