Unfair Contract Terms according to Art 30 to 39 by fat11113


									                       Dr. Stephan Keiler LL.M.
                Research Institute for European Affairs
            WU Vienna University of Economics and Business

Unfair Contract Terms according to
Art 30 to 39 of the Proposal for a
EC-Directive COM (2008) 614 final
and Tourism Contracts

   IFTTA Workshop, April 2, 2009, Universitat de les Illes Balears,
  The Proposal

On Oct 8, 2008 European Commission published a
proposal for a Directive on Consumer Rights focusing
on 4 existing Consumer Directives
    Doorstep Selling 85/577/EEC
    Distance Contracts 97/7/EC
    Unfair Terms 93/13/EEC
    Sale of Goods 1999/44/EC
  Exception: Art 3 Nr 3 Proposal

                             Stephan Keiler

Minimum or Full Harmonisation?

Minimum Harmonisation
Art 95 para 3 ECT (Art 114 FEUT)
Art 153 Nr 5 S 1 ECT (Art 169 Nr 4 S 1 FEUT)
Art 8 PTD

                       Stephan Keiler
   New Aim

Targeted Full Harmonisation

Art 4 Proposal „Full harmonisation„:
„Member States may not (...)“

                        Stephan Keiler
  Unfair Terms Art 30 - 39 Proposal
Scope of Application

Art 30
This Chapter shall apply to contract terms
•drafted in advance (...),
•which the consumer agreed to without (...) influencing
•part of a pre-formulated standard contract

                             Stephan Keiler

Art 32 para 1 General clause:
contrary to the requirement of good faith, it causes a
significant imbalance in the parties' rights and obligations (...)

Art 32 para 3
Core terms excluded

Art 33 Burden of proof
regarding individually negotiated clauses

Art 36 Interpretation:
doubt: most favourable to the consumer

Art 37 Effect:
not to be binding

                                      Stephan Keiler
   Black List (Annex II)
Contract terms which are in all circumstances
considered unfair
(a) excluding or limiting the liability of the trader for death or personal injury (...);
(b) limiting the trader's obligation to respect commitments by his agents (...);
(c) excluding or hindering the consumer's right to take legal action (...) particularly
by requiring arbitration (...);
(d) restricting the evidence available to the consumer;
(e) giving the trader the right to determine whether the (...) services supplied
are in conformity with the contract (...).

                                     Stephan Keiler
  Grey List (Annex III)
Contract terms which are presumed to be unfair
(a) excluding or limiting the legal rights of the consumer (...) in the event of total
or partial non-performance or inadequate performance;
(d) allowing the trader to terminate the contract at will where the same right is not
granted to the consumer;
(g) allowing the trader to increase the price (...) without giving the consumer the
right to terminate the contract;
(h) obliging the consumer to fulfil all his obligations where the trader has failed to
fulfil all his obligations;
(i) giving the trader the possibility of transferring his obligations (...) without the
consumer's agreement;
(k) enabling the trader to unilaterally alter the terms of the contract (...);
(l) unilaterally amending contract terms communicated to the consumer in a
durable medium (...).

                                     Stephan Keiler

Do MS will (still) have the right to maintain or
introduce similiar rules with respect to individually

                          Stephan Keiler

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