COM(2000)248 - Implementation of Council Directive 93/13/EEC on unfair terms in consumer contracts

official title

 

Legal instrument	Report
reference by COM-number205	COM(2000)248
Additional COM-numbers	COM(2000)248
CELEX number208	52000DC0248

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• 1. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 2. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 3. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 4. 

  While Directive 93/13/EEC goes to the heart of national legislation, several Member States had in the meantime legislated in this area on the basis of different philosophies.
  
   
• 5. 

  One of the gaps was the absence, contrary to the Commission's proposals, of rules approximating national legislation governing the sale of consumer goods. This gap was bridged with the adoption of Directive 99/44/EC on certain aspects of the sale of consumer goods and associated guarantees of 25.05.1999, OJ L 171, 7.7.1999, pp. 12-16.
  
   
• 6. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 7. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 8. 

  It was not until May 1998 that all the Member States had transposed the Directive, the last country to do so being the Kingdom of Spain.
  
   
• 9. 

  This is the Commission's view, but no judgment of the Court of Justice has been handed down in the cases in point.
  
   
• 10. 

  Denmark, France and Ireland notified the transposition measures within a few weeks or with just a few days delay.
  
   
• 11. 

  In some cases, the reason for non-communication was not that the Member State had not legislated in this field, but simply because it had introduced amendments with a view to bringing the old law into line with the Directive. This is the case of Germany, where an act on general contractual terms was adopted in 1976.
  
   
• 12. 

  The Belgian legislation of 1991, whose scope was narrower than the Directive's, did not provide for complete transposition of Articles 5 and 7(2) (as regard to the latter, actions for injunctions were limited to unfair terms listed in the Act as well as those concerning contracts covered by the 1997 Act). Besides, Article 6(2) had not been transposed.
  
   
• 13. 

  Portugal's 1985 legislation (as amended in 1995) had not correctly transposed Article 3(2) and completely ignored the third sentence of Article 5.
  
   
• 14. 

  The Statutory Instrument on Unfair Terms 1994 did not transpose the third sentence of Article 5 and did not fully implement Article 7(2) (since actions for injunctions could only be mounted by the Office of Fair Trading).
  
   
• 15. 

  Act 1259/1994 (which amended Act 38/78) does not transpose Article 6(2).
  
   
• 16. 

  The previous Act No 2251 of 16 November 1994 did not fully transpose Articles 3(2), 5, 6(2) and 7(3) of the Directive. The Greek legislation was limited in scope to general terms and conditions only. Besides, it only protected consumers if the contract had a link with Greek territory and did not provide for remedies against professional associations that use or recommend unfair terms. The new Act No 2741 of 28 September 1999 is currently being examined.
  
   
• 17. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 18. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 19. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 20. 

  Italian legislation covers only contracts for the sale of goods or the provision of services.
  
   
• 21. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 22. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 23. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 24. 

  The scope has been restricted by certain national transposition rules to contracts relating exclusively to the supply of goods and services. Although contracts for the sale of products or the provision of services are those most frequently concluded between professionals and consumers, the Directive also covers other contracts such as contracts pertaining to guarantees for the benefit of a financial institution or even cases in which the consumers themselves are sellers (provided the buyer is acting in the course of business, of course). The Annex has not been transposed into the corpus of the transposition instruments of certain Member States (the three Nordic countries), which consider that to do so would run counter to consumers' interests (see point III.3). Article 5 has not been fully transposed (notably the second and third sentences) by all the Member States. Article 6(2) raises certain difficulties in application because certain Member States have either added additional conditions to the application of the Article or made consumer protection exclusively conditional on the criterion of residence. Article 7 has also given rise to certain problems arising either from the restrictions to the second paragraph (limiting the right to bring matters before the courts or administrative bodies to specific persons) or the failure to transpose the third paragraph (which provides for remedies against associations of professionals that use or recommend the use of unfair terms).
  
   
• 25. 

  Originally, Article 5(2) of the Directive provided that 'regardless of whether or not they are unfair, the terms which have not been individually negotiated shall be regarded as having been accepted by the consumer only where the latter has had a proper opportunity to examine the terms before the contract was concluded'.
  
   
• 26. 

  The database includes not only jurisprudence under specific national laws pertaining to unfair terms but also all jurisprudence which, although based on other provisions or general legal principles (good faith, equity, abuse of rights, etc.) has an unfair terms dimension.
  
   
• 27. 

  Joint cases C-240/98 to C-244/98, Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocío Murciano Quintero et al.
  
   
• 28. 

  This is merely in the form of an indirect exclusion pursuant to Article 3, which serves only as a criterion for assessing any term 'which has not been individually negotiated'. This exclusion results from the elimination by the Council of Article 4 of the Commission's amended proposal (COM(92)66 final, OJ C 73, 24.3.1992) which laid down specific criteria applicable to individually negotiated terms.
  
   
• 29. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 30. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 31. 

  Whether worded negatively (exclusion) or positively (risk not included) is irrelevant.
  
   
• 32. 

  Article 3(1) provides that a term shall be regarded as unfair "if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".
  
   
• 33. 

  The inverse also applies in the sense that a contractual term which might seem to be authorised by the annex is not automatically 'non-unfair'.
  
   
• 34. 

  Judgment of 19 September 1996, case C-236/95, Commission v Hellenic Republic,
   
• 35. 

  Namely Finland, Sweden and Denmark. Infringement proceedings have been brought against these countries.
  
   
• 36. 

  COM(90)322 final, OJ C 243, 28 September 1990.
  
   
• 37. 

  In amendment 11.
  
   
• 38. 

  OJ C 73, 24 March 1992.
  
   
• 39. 

  Recital No 20 provides that: "Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail;".
  
   
• 40. 

  Originally, Article 5(2) of the Directive provided that 'regardless of whether or not they are unfair, the terms which have not been individually negotiated shall be regarded as having been accepted by the consumer only where the latter has had a proper opportunity to examine the terms before the contract was concluded'.
  
   
• 41. 

  Although the Council was in favour of vesting such a right in consumers, it considered that this did not come within the legal framework of Directive 93/13 but rather that of national rules concerning the formation of contracts.
  
   
• 42. 

  Recital No 20 concerning Article 5 provides that ' the consumer should actually be given an opportunity to examine all the terms'. Point i of the Annex provides that a term that "irrevocably
   
• 43. 

  For example, it proved particularly difficult to obtain contractual terms and conditions in the context of the studies concerning insurance contracts, tourist contracts and financial services.
  
   
• 44. 

  However, some courts have ruled that the absence of clarity in a contractual term may be illegal in itself. The CLAB database contains some examples, such as the judgment of 20 September 1989 of the Creteil Court of Final Instance, before which consumer associations had sought an injunction against a term in a credit contract. The term provided, without further indications, that the borrower would have to prepare his dossier within the stipulated deadline for his request to be approved. The court considered the term to be illegal because of the absence of clarity (Clab FR 000012).
  
   
• 45. 

  Various sectoral Directives have explicitly enshrined the right to pre-contractual information. Examples include Directive 85/577 on contracts negotiated away from business premises (Article 4), Directive 90/314 on package travel, package holidays and package tours (Article 4), Directive 94/47 on the purchase of the right to use immovable properties on a timeshare basis (Article 3), Directive 97/7 on distance contracts (Article 4), etc.
  
   
• 46. 

  This possibility might also be derived from Directive 98/27/EC on actions for injunctions, which must be transposed by 1 January 2001.
  
   
• 47. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 48. 

  It goes without saying that, if the firm challenges the consumer's position, it may sue the consumer in question and win the case, with all the associated consequences for the consumer, if the court finds that the contested term is not unfair.
  
   
• 49. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 50. 

  The Conclusions of the Advocate General of 16 December 1999 (joint cases C-240/98 to C-244/98 - Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocío Murciano Quintero et al) fully support this position. According to the Advocate General the penalty provided for in Article 6(1) of the Directive "means that the Directive's provisions can be characterised as 'imperative' rules of public economic order which cannot but be reflected in the powers vested in the national court". The Advocate General also stresses that 'it is in the public interest that terms harmful to consumers be unenforceable' and that 'the ex officio involvement of the court is not only extremely effective with a view to suppression but also seems likely to genuinely dissuade firms from including unfair terms in consumer contracts'.
  
   
• 51. 

  In this connection, the Commission indicated in its Communication to the Council and the European Parliament on the role of penalties in implementing Community internal market legislation (COM(95)162 final) that it was important to ensure the transparency of national penalties so as to be able to confirm that they are effective, proportionate and dissuasive. In its Resolution of 29 June 1995 (on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market, OJ C 188 of 22 July 1995) the Council reiterated these arguments and added that, pursuant to Article 5 of the Treaty, Member States must take any appropriate measures to guarantee the scope and effectiveness of Community law by, inter alia, making the chosen penalty effective, proportionate and dissuasive.
  
   
• 52. 

  In Ireland, Instrument No 27/1995 transposing the Directive provides that only the Director of Consumer Affairs shall be entitled to bring actions for an injunction (an infringement procedure has been brought against the Republic of Ireland for failure to transpose Article 7(2) of the Directive correctly).
  
   
• 53. 

  Although the Verbraucherschutzverein is not formally an administrative body but an association under private law, it is largely subsidised by public funds for fulfilling missions of general interest.
  
   
• 54. 

  Even before the Directive was adopted, Portuguese legislation (Decree-Law No 446/85 of 25 October 1985) already empowered certain consumer associations and certain trade unions, professional and business associations and the Ministry of the Public to bring proceedings. Besides, the Spanish transposition Act No 7/1998 of 13 April 1998 also vested this power in the Public Ministry.
  
   
• 55. 

  The summary of the case files concerning the elimination of unfair terms dealt with by UFC- Que Choisir (a French consumer organisation) since 1984 (published in 1999) contains examples of judgments which mention the recommendations of the Unfair Terms Commission. Besides CLAB contains numerous decisions handed down by French courts of first instance and French appeal courts which refer to the recommendations of the Unfair Terms Commission. This is the case as regards contracts for the purchase of motor vehicles (Clab FR 000411), holiday contracts (Clab FR 000412), seasonal rental contracts (Clab FR 000414), motorway subscription contracts (Clab FR 000450), remote surveillance contracts (Clab FR 000579), cable or pay television subscription contracts(Clab FR000653), etc.
  
   
• 56. 

  As in Directive 84/450 on misleading advertising and also in Directive 98/27 of 19 May 1998 on injunctions for the protection of consumers' interests, which require Member States to provide for emergency procedures. This Directive must be transposed by 1 January 2001 at the latest.
  
   
• 57. 

  Ordinanza of the Palermo Court 17-22 October 1997.
  
   
• 58. 

  It is interesting to note that Brazil has found a solution to this problem: in certain conditions, actions for injunctions may have an effect erga omnes.
  
   
• 59. 

  Transposition Act No 7/1998 of 13 April 1998.
  
   
• 60. 

  Portugal and certain Nordic countries have also introduced a system for registering court decisions on unfair terms handed down in the context of individual actions or actions for an injunction.
  
   
• 61. 

  In certain cases the legal system of the Member States also considers this refusal to comply with an injunction to be a penal infringement, and sometimes this may be more dissuasive than a fine.
  
   
• 62. 

  According to a 1995 study performed by the Centre du Droit de la Consommation of the University of Montpellier, certain optional insurance policies contain no details e.g. as regards the obligation on the insurer to reply to an accident statement, the appointment of an expert, the payment of commission, etc. ... which may give rise to unfair 'silences'. CLAB also contains abundant examples from the insurance sector of vaguely worded terms or unfair silences. As regards vague contractual terms, the Belgian Court of Cassation deemed unfair a term waiving the guarantee in respect of certain damages on the grounds that that an exclusion clause cannot be validly relied on against the insuree unless the clauses in question are 'clear, express and limited' ... (Clab BE 000447). As regards unfair silences, the Lyons Court of Final Appeal in its judgment of 23 May 1996 ruled that a term was unfair because it does not subject increases in the premium to any contractrual condition and gives the insurance company an unfair advantage because it does not have to justify any increase in the premiums it decides to adopt (Clab FR 000324). Likewise, the Athens Court of First Instance considered a term to be unfair ... on grounds that the increase in the price of the premium was not governed by special and precise criteria set out in the contract (Clab GR 000189).
  
   
• 63. 

  The results speak for themselves: between 1995 and 1998, a total of 1 200 professionals modified or eliminated unfair terms from their contracts following discussions with the Office of Fair Trading.
  
   
• 64. 

  For example in the United Kingdom a new standard contract was recently drafted by the Office of Fair Trading and the British Vehicle Rental and Leasing Association (a professional association which alone represents 85% of turnover in the rental and leasing of vehicles in the United Kingdom).
  
   
• 65. 

  The CLAB database shows that, in Sweden, nine decisions were handed down since 31 December 1994 (the deadline for transposition of the Directive), while 189 judgments had been handed down before that date. Likewise in the Netherlands 28 decisions have been handed down since 31 December 1994 as opposed to 69 judgments prior to that date.
  
   
• 66. 

  The Commission has subsidised actions for injunctions in regard to car rental contracts, timeshare contracts, contracts concerning new technologies and contracts concerning holidays. Besides, the Commission has mounted a project that focuses on dialogue between professionals and consumers in the field of package holidays (see Chapter II of this report).
  
   
• 67. 

  In amendment No 49, the European Parliament suggested that the main functions of the mediator should be to 'supervise the implementation of the Directive by the Member States, try to settle disputes associated with the presence of unfair terms on an amicable basis, organise meetings between the contracting parties when they reside in two or more different Member States, and prepare an annual report on unfair terms.'
  
   
• 68. 

  OJ C 73/7, 24.3.1992.
  
   
• 69. 

  OJ 95, 30.3.1998, p. 72.
  
   
• 70. 

  Consumer Policy Action Plan 1999-2001 - COM(1998) 696 final of 1.12.1998.
  
   
• 71. 

  At the conference in June 1999, the financial community expressed its misgivings about the different degrees of protection within the Member States (these misgivings being all the more pronounced in the field of the crossborder provision of financial services because of the need for a clear and standard contractual framework).
  
   
• 72. 

  Study on unfair terms in certain insurance contracts carried out for the Commission by the Centre du Droit de la Consommation, University of Montpellier/France, July 1995
  
   
• 73. 

  OJ C 95, 30.3.1998.
  
   
• 74. 

  On the application of Article 81(3) of the Treaty (ex-Article 85(3)) to certain categories of agreements, decisions and concerted practices in the insurance sector, OJ L 398, 31.12.1992.
  
   
• 75. 

  The base also includes the EEA countries Iceland and Norway.
  
   
• 76. 

  Grand-Ducal Regulation of 4 November 1997 on prior information and the terms of contracts relating to package travel, package holidays and package tours, pursuant to Articles 9, 11 and 12 of the Act of 14 June 1994 governing the conditions for the exercise of activities relating to the organisation and sale of holidays and travel.
  
   
• 77. 

  OJ L 158/59, 23.6.1990.
  
   
• 78. 

  Considering that the period of 21 days before departure imposed an unfair limitation on the right to transfer the booking provided for by Article 4(3) of the Directive 90/314, infringement proceedings have been brought against the Grand Duchy of Luxembourg. The Luxembourg authorities recently informed the Commission that they will shortly amend the contested provision with a view to bringing it into line with Directive 90/314.
  
   
• 79. 

  In its Resolution on the approximation of the private law of the Member States (OJ C 158/400), Parliament called in particular for preparatory work to be begun with a view to drafting a common Community code of private law, and the creation, by the Member States that accept the principle of unification, of a committee of qualified scientists who could propose priorities and organise all the activities needed with a view to harmonising private law in these states.
  
   
• 80. 

  In its Resolution on the harmonisation of certain sectors of private law in the Member States (OJ C 205, 25.7.94), Parliament urged the Commission to begin work on the possibility of drafting a common Community code of private law and reiterated its opinion that a committee of qualified scientists should be created to propose priorities for partial harmonisation in the short term and more general harmonisation in the long-term.
  
   
• 81. 

  The Council and the Commission were invited to strive towards greater convergence of private law and in particular to prepare a general study on the need to approximate the legislation of the Member States in civil matters with a view to eliminating barriers to the smooth functioning of civil procedures.
  
   
• 82. 

  The CLAB database also contains approximately 500 cases pertaining exclusively to relations between undertakings which are considered to be of great interest for consumers. Besides, some of these decisions apply the criteria of the Directive to disputes between professionals. One example is the judgment of the Milan court of 5 September 1995, which examined and declared to be unfair certain contractual terms waiving liability in respect of an insurance company which had been sued by another company, in regard to the provisions of the Directive (Clab IT 000452).
  
   
• 83. 

  Article 4 of Directive 99/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees touches on this problem, but does not fully resolve it, since it leaves it to national law to protect the final seller vis-à-vis his supplier. The nature of this protection generally depends on whether or not there is a general law governing contractual conditions.
  
   
• 84. 

  The CLAB database highlights the importance of the cases addressed in the United Kingdom by administrative procedures since the time limit for transposition of the Directive: 625 of the 865 administrative measures listed up to now in the database hail from this Member State.
  
   
• 85. 

  Judgment delivered on 8 September 1999 by the Merchant Court of Namur.
  
   
• 86. 

  Indeed this interpretation could be in accordance with the Belgian act before it was recently amended in order to bring it into line with the Directive, following the initiation of an infringement procedure. This shows the real impact of these types of procedures on national law.
  
   
• 87. 

  Decision of the Ordinary Court of Turin of 7 July 1999.
  
   
• 88. 

  Judgment of the Spanish Supreme Court of 8 November 1996.
  
   
• 89. 

  The CJEC does not recognise the direct horizontal effect of a Directive. Hence, a private individual can directly rely on a Directive before a national court only against the Member State to which it is addressed but not against another private party. Nevertheless the CJEC has allowed for the possibility of a 'indirect horizontal effect' via reliance on interpretative criteria, notably in Von Colson v Harz (14/83 and 79/83 of 10.4.1984). The indirect nature of the horizontal effect presumes that national court are duty bound to interpret national law in the light of the wording and the objectives of the Directive, in order to arrive at the result required by Article 249 of the Treaty, though without prejudice to legal certainty and non-retroactivity.
  
   
• 90. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 91. 

  OGH 11.1.1996. ecolex 1996, 358 = KRES 3/94.
  
   
• 92. 

  'Vorprozessuales Abmahnverfahren' (Pre-trial Reprimand Procedure) Decision of 25 December 1997, AGB-Info 1997/17.
  
   
• 93. 

  Case C-82/96 The Queen v Secretary of State for Trade and Industry.
  
   
• 94. 

  Joint cases C-240/98 to C-244/98 Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocio Murciano Quintero and others.
  
   
• 95. 

  Article 8 of the General Terms and Conditions Act (Gesetz über allgemeine Geschäftsbedingungen/ABGB) provides that only 'general terms and conditions whose rules derogate from ordinary law or supplementary rules' are subject to control in respect of their content.
  
   
• 96. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 97. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 98. 

  'The Federal legislator has transposed into national law a Directive addressed to the Member States which is binding only on these States. There is no need to amend Article 8 of the General Terms and Conditions Act because it is already in conformity with Article 4(2) of the Directive. It is for the German courts to determine whether the term in question is subject to review in respect of its subject matter, and the European Court of Justice, pursuant to Article 177 of the EC Treaty, has no say in this area'. - BGH 7.7.1998, Der Betriebs-Berater 1998, 1864.
  
   
• 99. 

  The International Marketing Supervision Network is a cooperative network involving the authorities responsible for implementing Community law.
  
   
• 100. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 101. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 102. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 103. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 104. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 105. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 106. 

  While Directive 93/13/EEC goes to the heart of national legislation, several Member States had in the meantime legislated in this area on the basis of different philosophies.
  
   
• 107. 

  One of the gaps was the absence, contrary to the Commission's proposals, of rules approximating national legislation governing the sale of consumer goods. This gap was bridged with the adoption of Directive 99/44/EC on certain aspects of the sale of consumer goods and associated guarantees of 25.05.1999, OJ L 171, 7.7.1999, pp. 12-16.
  
   
• 108. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 109. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 110. 

  It was not until May 1998 that all the Member States had transposed the Directive, the last country to do so being the Kingdom of Spain.
  
   
• 111. 

  This is the Commission's view, but no judgment of the Court of Justice has been handed down in the cases in point.
  
   
• 112. 

  Denmark, France and Ireland notified the transposition measures within a few weeks or with just a few days delay.
  
   
• 113. 

  In some cases, the reason for non-communication was not that the Member State had not legislated in this field, but simply because it had introduced amendments with a view to bringing the old law into line with the Directive. This is the case of Germany, where an act on general contractual terms was adopted in 1976.
  
   
• 114. 

  The Belgian legislation of 1991, whose scope was narrower than the Directive's, did not provide for complete transposition of Articles 5 and 7(2) (as regard to the latter, actions for injunctions were limited to unfair terms listed in the Act as well as those concerning contracts covered by the 1997 Act). Besides, Article 6(2) had not been transposed.
  
   
• 115. 

  Portugal's 1985 legislation (as amended in 1995) had not correctly transposed Article 3(2) and completely ignored the third sentence of Article 5.
  
   
• 116. 

  The Statutory Instrument on Unfair Terms 1994 did not transpose the third sentence of Article 5 and did not fully implement Article 7(2) (since actions for injunctions could only be mounted by the Office of Fair Trading).
  
   
• 117. 

  Act 1259/1994 (which amended Act 38/78) does not transpose Article 6(2).
  
   
• 118. 

  The previous Act No 2251 of 16 November 1994 did not fully transpose Articles 3(2), 5, 6(2) and 7(3) of the Directive. The Greek legislation was limited in scope to general terms and conditions only. Besides, it only protected consumers if the contract had a link with Greek territory and did not provide for remedies against professional associations that use or recommend unfair terms. The new Act No 2741 of 28 September 1999 is currently being examined.
  
   
• 119. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 120. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 121. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 122. 

  Italian legislation covers only contracts for the sale of goods or the provision of services.
  
   
• 123. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 124. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 125. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 126. 

  The scope has been restricted by certain national transposition rules to contracts relating exclusively to the supply of goods and services. Although contracts for the sale of products or the provision of services are those most frequently concluded between professionals and consumers, the Directive also covers other contracts such as contracts pertaining to guarantees for the benefit of a financial institution or even cases in which the consumers themselves are sellers (provided the buyer is acting in the course of business, of course). The Annex has not been transposed into the corpus of the transposition instruments of certain Member States (the three Nordic countries), which consider that to do so would run counter to consumers' interests (see point III.3). Article 5 has not been fully transposed (notably the second and third sentences) by all the Member States. Article 6(2) raises certain difficulties in application because certain Member States have either added additional conditions to the application of the Article or made consumer protection exclusively conditional on the criterion of residence. Article 7 has also given rise to certain problems arising either from the restrictions to the second paragraph (limiting the right to bring matters before the courts or administrative bodies to specific persons) or the failure to transpose the third paragraph (which provides for remedies against associations of professionals that use or recommend the use of unfair terms).
  
   
• 127. 

  Originally, Article 5(2) of the Directive provided that 'regardless of whether or not they are unfair, the terms which have not been individually negotiated shall be regarded as having been accepted by the consumer only where the latter has had a proper opportunity to examine the terms before the contract was concluded'.
  
   
• 128. 

  The database includes not only jurisprudence under specific national laws pertaining to unfair terms but also all jurisprudence which, although based on other provisions or general legal principles (good faith, equity, abuse of rights, etc.) has an unfair terms dimension.
  
   
• 129. 

  Joint cases C-240/98 to C-244/98, Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocío Murciano Quintero et al.
  
   
• 130. 

  This is merely in the form of an indirect exclusion pursuant to Article 3, which serves only as a criterion for assessing any term 'which has not been individually negotiated'. This exclusion results from the elimination by the Council of Article 4 of the Commission's amended proposal (COM(92)66 final, OJ C 73, 24.3.1992) which laid down specific criteria applicable to individually negotiated terms.
  
   
• 131. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 132. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 133. 

  Whether worded negatively (exclusion) or positively (risk not included) is irrelevant.
  
   
• 134. 

  Article 3(1) provides that a term shall be regarded as unfair "if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".
  
   
• 135. 

  The inverse also applies in the sense that a contractual term which might seem to be authorised by the annex is not automatically 'non-unfair'.
  
   
• 136. 

  Judgment of 19 September 1996, case C-236/95, Commission v Hellenic Republic,
   
• 137. 

  Namely Finland, Sweden and Denmark. Infringement proceedings have been brought against these countries.
  
   
• 138. 

  COM(90)322 final, OJ C 243, 28 September 1990.
  
   
• 139. 

  In amendment 11.
  
   
• 140. 

  OJ C 73, 24 March 1992.
  
   
• 141. 

  Recital No 20 provides that: "Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail;".
  
   
• 142. 

  Originally, Article 5(2) of the Directive provided that 'regardless of whether or not they are unfair, the terms which have not been individually negotiated shall be regarded as having been accepted by the consumer only where the latter has had a proper opportunity to examine the terms before the contract was concluded'.
  
   
• 143. 

  Although the Council was in favour of vesting such a right in consumers, it considered that this did not come within the legal framework of Directive 93/13 but rather that of national rules concerning the formation of contracts.
  
   
• 144. 

  Recital No 20 concerning Article 5 provides that ' the consumer should actually be given an opportunity to examine all the terms'. Point i of the Annex provides that a term that "irrevocably
   
• 145. 

  For example, it proved particularly difficult to obtain contractual terms and conditions in the context of the studies concerning insurance contracts, tourist contracts and financial services.
  
   
• 146. 

  However, some courts have ruled that the absence of clarity in a contractual term may be illegal in itself. The CLAB database contains some examples, such as the judgment of 20 September 1989 of the Creteil Court of Final Instance, before which consumer associations had sought an injunction against a term in a credit contract. The term provided, without further indications, that the borrower would have to prepare his dossier within the stipulated deadline for his request to be approved. The court considered the term to be illegal because of the absence of clarity (Clab FR 000012).
  
   
• 147. 

  Various sectoral Directives have explicitly enshrined the right to pre-contractual information. Examples include Directive 85/577 on contracts negotiated away from business premises (Article 4), Directive 90/314 on package travel, package holidays and package tours (Article 4), Directive 94/47 on the purchase of the right to use immovable properties on a timeshare basis (Article 3), Directive 97/7 on distance contracts (Article 4), etc.
  
   
• 148. 

  This possibility might also be derived from Directive 98/27/EC on actions for injunctions, which must be transposed by 1 January 2001.
  
   
• 149. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 150. 

  It goes without saying that, if the firm challenges the consumer's position, it may sue the consumer in question and win the case, with all the associated consequences for the consumer, if the court finds that the contested term is not unfair.
  
   
• 151. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 152. 

  The Conclusions of the Advocate General of 16 December 1999 (joint cases C-240/98 to C-244/98 - Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocío Murciano Quintero et al) fully support this position. According to the Advocate General the penalty provided for in Article 6(1) of the Directive "means that the Directive's provisions can be characterised as 'imperative' rules of public economic order which cannot but be reflected in the powers vested in the national court". The Advocate General also stresses that 'it is in the public interest that terms harmful to consumers be unenforceable' and that 'the ex officio involvement of the court is not only extremely effective with a view to suppression but also seems likely to genuinely dissuade firms from including unfair terms in consumer contracts'.
  
   
• 153. 

  In this connection, the Commission indicated in its Communication to the Council and the European Parliament on the role of penalties in implementing Community internal market legislation (COM(95)162 final) that it was important to ensure the transparency of national penalties so as to be able to confirm that they are effective, proportionate and dissuasive. In its Resolution of 29 June 1995 (on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market, OJ C 188 of 22 July 1995) the Council reiterated these arguments and added that, pursuant to Article 5 of the Treaty, Member States must take any appropriate measures to guarantee the scope and effectiveness of Community law by, inter alia, making the chosen penalty effective, proportionate and dissuasive.
  
   
• 154. 

  In Ireland, Instrument No 27/1995 transposing the Directive provides that only the Director of Consumer Affairs shall be entitled to bring actions for an injunction (an infringement procedure has been brought against the Republic of Ireland for failure to transpose Article 7(2) of the Directive correctly).
  
   
• 155. 

  Although the Verbraucherschutzverein is not formally an administrative body but an association under private law, it is largely subsidised by public funds for fulfilling missions of general interest.
  
   
• 156. 

  Even before the Directive was adopted, Portuguese legislation (Decree-Law No 446/85 of 25 October 1985) already empowered certain consumer associations and certain trade unions, professional and business associations and the Ministry of the Public to bring proceedings. Besides, the Spanish transposition Act No 7/1998 of 13 April 1998 also vested this power in the Public Ministry.
  
   
• 157. 

  The summary of the case files concerning the elimination of unfair terms dealt with by UFC- Que Choisir (a French consumer organisation) since 1984 (published in 1999) contains examples of judgments which mention the recommendations of the Unfair Terms Commission. Besides CLAB contains numerous decisions handed down by French courts of first instance and French appeal courts which refer to the recommendations of the Unfair Terms Commission. This is the case as regards contracts for the purchase of motor vehicles (Clab FR 000411), holiday contracts (Clab FR 000412), seasonal rental contracts (Clab FR 000414), motorway subscription contracts (Clab FR 000450), remote surveillance contracts (Clab FR 000579), cable or pay television subscription contracts(Clab FR000653), etc.
  
   
• 158. 

  As in Directive 84/450 on misleading advertising and also in Directive 98/27 of 19 May 1998 on injunctions for the protection of consumers' interests, which require Member States to provide for emergency procedures. This Directive must be transposed by 1 January 2001 at the latest.
  
   
• 159. 

  Ordinanza of the Palermo Court 17-22 October 1997.
  
   
• 160. 

  It is interesting to note that Brazil has found a solution to this problem: in certain conditions, actions for injunctions may have an effect erga omnes.
  
   
• 161. 

  Transposition Act No 7/1998 of 13 April 1998.
  
   
• 162. 

  Portugal and certain Nordic countries have also introduced a system for registering court decisions on unfair terms handed down in the context of individual actions or actions for an injunction.
  
   
• 163. 

  In certain cases the legal system of the Member States also considers this refusal to comply with an injunction to be a penal infringement, and sometimes this may be more dissuasive than a fine.
  
   
• 164. 

  According to a 1995 study performed by the Centre du Droit de la Consommation of the University of Montpellier, certain optional insurance policies contain no details e.g. as regards the obligation on the insurer to reply to an accident statement, the appointment of an expert, the payment of commission, etc. ... which may give rise to unfair 'silences'. CLAB also contains abundant examples from the insurance sector of vaguely worded terms or unfair silences. As regards vague contractual terms, the Belgian Court of Cassation deemed unfair a term waiving the guarantee in respect of certain damages on the grounds that that an exclusion clause cannot be validly relied on against the insuree unless the clauses in question are 'clear, express and limited' ... (Clab BE 000447). As regards unfair silences, the Lyons Court of Final Appeal in its judgment of 23 May 1996 ruled that a term was unfair because it does not subject increases in the premium to any contractrual condition and gives the insurance company an unfair advantage because it does not have to justify any increase in the premiums it decides to adopt (Clab FR 000324). Likewise, the Athens Court of First Instance considered a term to be unfair ... on grounds that the increase in the price of the premium was not governed by special and precise criteria set out in the contract (Clab GR 000189).
  
   
• 165. 

  The results speak for themselves: between 1995 and 1998, a total of 1 200 professionals modified or eliminated unfair terms from their contracts following discussions with the Office of Fair Trading.
  
   
• 166. 

  For example in the United Kingdom a new standard contract was recently drafted by the Office of Fair Trading and the British Vehicle Rental and Leasing Association (a professional association which alone represents 85% of turnover in the rental and leasing of vehicles in the United Kingdom).
  
   
• 167. 

  The CLAB database shows that, in Sweden, nine decisions were handed down since 31 December 1994 (the deadline for transposition of the Directive), while 189 judgments had been handed down before that date. Likewise in the Netherlands 28 decisions have been handed down since 31 December 1994 as opposed to 69 judgments prior to that date.
  
   
• 168. 

  The Commission has subsidised actions for injunctions in regard to car rental contracts, timeshare contracts, contracts concerning new technologies and contracts concerning holidays. Besides, the Commission has mounted a project that focuses on dialogue between professionals and consumers in the field of package holidays (see Chapter II of this report).
  
   
• 169. 

  In amendment No 49, the European Parliament suggested that the main functions of the mediator should be to 'supervise the implementation of the Directive by the Member States, try to settle disputes associated with the presence of unfair terms on an amicable basis, organise meetings between the contracting parties when they reside in two or more different Member States, and prepare an annual report on unfair terms.'
  
   
• 170. 

  OJ C 73/7, 24.3.1992.
  
   
• 171. 

  OJ 95, 30.3.1998, p. 72.
  
   
• 172. 

  Consumer Policy Action Plan 1999-2001 - COM(1998) 696 final of 1.12.1998.
  
   
• 173. 

  At the conference in June 1999, the financial community expressed its misgivings about the different degrees of protection within the Member States (these misgivings being all the more pronounced in the field of the crossborder provision of financial services because of the need for a clear and standard contractual framework).
  
   
• 174. 

  Study on unfair terms in certain insurance contracts carried out for the Commission by the Centre du Droit de la Consommation, University of Montpellier/France, July 1995
  
   
• 175. 

  OJ C 95, 30.3.1998.
  
   
• 176. 

  On the application of Article 81(3) of the Treaty (ex-Article 85(3)) to certain categories of agreements, decisions and concerted practices in the insurance sector, OJ L 398, 31.12.1992.
  
   
• 177. 

  The base also includes the EEA countries Iceland and Norway.
  
   
• 178. 

  Grand-Ducal Regulation of 4 November 1997 on prior information and the terms of contracts relating to package travel, package holidays and package tours, pursuant to Articles 9, 11 and 12 of the Act of 14 June 1994 governing the conditions for the exercise of activities relating to the organisation and sale of holidays and travel.
  
   
• 179. 

  OJ L 158/59, 23.6.1990.
  
   
• 180. 

  Considering that the period of 21 days before departure imposed an unfair limitation on the right to transfer the booking provided for by Article 4(3) of the Directive 90/314, infringement proceedings have been brought against the Grand Duchy of Luxembourg. The Luxembourg authorities recently informed the Commission that they will shortly amend the contested provision with a view to bringing it into line with Directive 90/314.
  
   
• 181. 

  In its Resolution on the approximation of the private law of the Member States (OJ C 158/400), Parliament called in particular for preparatory work to be begun with a view to drafting a common Community code of private law, and the creation, by the Member States that accept the principle of unification, of a committee of qualified scientists who could propose priorities and organise all the activities needed with a view to harmonising private law in these states.
  
   
• 182. 

  In its Resolution on the harmonisation of certain sectors of private law in the Member States (OJ C 205, 25.7.94), Parliament urged the Commission to begin work on the possibility of drafting a common Community code of private law and reiterated its opinion that a committee of qualified scientists should be created to propose priorities for partial harmonisation in the short term and more general harmonisation in the long-term.
  
   
• 183. 

  The Council and the Commission were invited to strive towards greater convergence of private law and in particular to prepare a general study on the need to approximate the legislation of the Member States in civil matters with a view to eliminating barriers to the smooth functioning of civil procedures.
  
   
• 184. 

  The CLAB database also contains approximately 500 cases pertaining exclusively to relations between undertakings which are considered to be of great interest for consumers. Besides, some of these decisions apply the criteria of the Directive to disputes between professionals. One example is the judgment of the Milan court of 5 September 1995, which examined and declared to be unfair certain contractual terms waiving liability in respect of an insurance company which had been sued by another company, in regard to the provisions of the Directive (Clab IT 000452).
  
   
• 185. 

  Article 4 of Directive 99/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees touches on this problem, but does not fully resolve it, since it leaves it to national law to protect the final seller vis-à-vis his supplier. The nature of this protection generally depends on whether or not there is a general law governing contractual conditions.
  
   
• 186. 

  The CLAB database highlights the importance of the cases addressed in the United Kingdom by administrative procedures since the time limit for transposition of the Directive: 625 of the 865 administrative measures listed up to now in the database hail from this Member State.
  
   
• 187. 

  Judgment delivered on 8 September 1999 by the Merchant Court of Namur.
  
   
• 188. 

  Indeed this interpretation could be in accordance with the Belgian act before it was recently amended in order to bring it into line with the Directive, following the initiation of an infringement procedure. This shows the real impact of these types of procedures on national law.
  
   
• 189. 

  Decision of the Ordinary Court of Turin of 7 July 1999.
  
   
• 190. 

  Judgment of the Spanish Supreme Court of 8 November 1996.
  
   
• 191. 

  The CJEC does not recognise the direct horizontal effect of a Directive. Hence, a private individual can directly rely on a Directive before a national court only against the Member State to which it is addressed but not against another private party. Nevertheless the CJEC has allowed for the possibility of a 'indirect horizontal effect' via reliance on interpretative criteria, notably in Von Colson v Harz (14/83 and 79/83 of 10.4.1984). The indirect nature of the horizontal effect presumes that national court are duty bound to interpret national law in the light of the wording and the objectives of the Directive, in order to arrive at the result required by Article 249 of the Treaty, though without prejudice to legal certainty and non-retroactivity.
  
   
• 192. 

  Notably, with its Communication 'Unfair terms in consumer contracts' of 14 February 1984 the Commission launched a public debate on this subject (COM(84)55 final, published in Supplement 1/84 of the Bulletin of the European Communities).
  
   
• 193. 

  OGH 11.1.1996. ecolex 1996, 358 = KRES 3/94.
  
   
• 194. 

  'Vorprozessuales Abmahnverfahren' (Pre-trial Reprimand Procedure) Decision of 25 December 1997, AGB-Info 1997/17.
  
   
• 195. 

  Case C-82/96 The Queen v Secretary of State for Trade and Industry.
  
   
• 196. 

  Joint cases C-240/98 to C-244/98 Océano Grupo Editorial, S.A. and Salvat Editores, S.A. v Rocio Murciano Quintero and others.
  
   
• 197. 

  Article 8 of the General Terms and Conditions Act (Gesetz über allgemeine Geschäftsbedingungen/ABGB) provides that only 'general terms and conditions whose rules derogate from ordinary law or supplementary rules' are subject to control in respect of their content.
  
   
• 198. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 199. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 200. 

  'The Federal legislator has transposed into national law a Directive addressed to the Member States which is binding only on these States. There is no need to amend Article 8 of the General Terms and Conditions Act because it is already in conformity with Article 4(2) of the Directive. It is for the German courts to determine whether the term in question is subject to review in respect of its subject matter, and the European Court of Justice, pursuant to Article 177 of the EC Treaty, has no say in this area'. - BGH 7.7.1998, Der Betriebs-Berater 1998, 1864.
  
   
• 201. 

  The International Marketing Supervision Network is a cooperative network involving the authorities responsible for implementing Community law.
  
   
• 202. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 203. 

  Council Resolution of 14.4.1975, OJ C 92/1, 24.4.1975. Besides, on 14 February 1984 the Commission presented a Communication to the Council (COM(84)55 final) on unfair terms in consumer contracts.
  
   
• 204. 

  COM(90)322 final, OJ C 243, 28.9.1990.
  
   
• 205. 

  De Europese Commissie kent nummers toe aan officiële documenten van de Europese Unie. De Commissie maakt onderscheid in een aantal typen documenten door middel van het toekennen van verschillende nummerseries. Het onderscheid is gebaseerd op het soort document en/of de instelling van de Unie van wie het document afkomstig is.
   
• 206. 

  De Raad van de Europese Unie kent aan wetgevingsdossiers een uniek toe. Dit nummer bestaat uit een vijfcijferig volgnummer gevolgd door een schuine streep met de laatste twee cijfers van het jaartal, bijvoorbeeld 12345/00 - een document met nummer 12345 uit het jaar 2000.
   
• 207. 

  Het interinstitutionele nummer is een nummerreeks die binnen de Europese Unie toegekend wordt aan voorstellen voor regelgeving van de Europese Commissie.
  Binnen de Europese Unie worden nog een aantal andere nummerseries gebruikt. Iedere instelling heeft één of meerdere sets documenten met ieder een eigen nummering. Die reeksen komen niet overeen met elkaar of het interinstitutioneel nummer.
   
• 208. 

  Deze databank van de Europese Unie biedt de mogelijkheid de actuele werkzaamheden (workflow) van de Europese instellingen (Europees Parlement, Raad, ESC, Comité van de Regio's, Europese Centrale Bank, Hof van Justitie enz.) te volgen. EURlex volgt alle voorstellen (zoals wetgevende en begrotingsdossiers) en mededelingen van de Commissie, vanaf het moment dat ze aan de Raad of het Europees Parlement worden voorgelegd.
   
• 209. 

  Als dag van bekendmaking van een Europees besluit geldt de dag waarop het besluit in het Publicatieblad wordt bekendgemaakt, en daardoor in alle officiële talen van de Europese Unie bij het Publicatiebureau beschikbaar is.