(A) Nebbia Prelims 15/11/06 13:35 Page i UNFAIR CONTRACT TERMS IN EUROPEAN LAW The book examines Directive 93/13 on Unfair Terms in Consumer Contracts and its implementation with a twofold aim: first, to understand the extent to which the Directive has influenced and will influence fundamental notions and principles of contract law in the domestic legal systems of the Member States; second, it examines the extent to which the domestic legal traditions of the Member States have influenced the process of drafting of the Directive and, more importantly, will affect the way that the Directive is interpreted and applied in national courts The focus is mainly on English law (including the 2005 Unfair Terms in Contracts Bill) and on Italian law, but frequent references are made to the French and the German systems At the same time, the book has a broader, more ‘European’ concern, in that it aims to distill from the existing Community acquis and from the history and rationale of Directive 93/13 notions and concepts that could guide its interpretation It is well known that Community law uses terminology which is peculiar to it, and that legal concepts not necessarily have the same meaning in EC law and in the law of the various Member States: every provision of Community law must be placed in its context and interpreted in the light of its own objectives and rationale, and of the objectives and rationale of Community law as a whole In this respect, this book aims to identify the contours and features of the emerging European legal tradition, and to assess the impact that this may have on the domestic traditions Modern Studies in European Law: Volume 15 (A) Nebbia Prelims 15/11/06 13:35 Page ii Modern Studies in European Law Soft Law in European Community Law Linda Senden The Impact of European Rights on National Legal Cultures Miriam Aziz Partnership Rights, Free Movement and EU Law Helen Toner National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation Michael Dougan The National Courts’ Mandate in the European Constitution Monica Claes EU Environmental Law: Challenges, Changes and Decision-Making Maria Lee European Union Law and Defence Integration Martin Trybus Principles of European Constitutional Law Armin von Bogdandy & Jürgen Bast EU International Relations Law Panos Koutrakos (A) Nebbia Prelims 15/11/06 13:35 Page iii Unfair Contract Terms in European Law A Study in Comparative and EC Law Paolisa Nebbia OXFORD AND PORTLAND, OREGON 2007 (A) Nebbia Prelims 15/11/06 13:35 Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: www.isbs.com © Paolisa Nebbia, 2007 Paolisa Nebbia has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any mean, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below Hart Publishing, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-594-6 (hardback) ISBN-10: 1-84113-594-1 (hardback) Typeset by Hope Services, Abingdon Printed and bound in Great Britain by Biddles Ltd, King’s Lynn, Norfolk (A) Nebbia Prelims 15/11/06 13:35 Page v A mia Mamma (A) Nebbia Prelims 15/11/06 13:35 Page vi (A) Nebbia Prelims 15/11/06 13:35 Page vii Acknowledgements There are a number of people to whom I am indebted Many of my colleagues have read, at different stages and in different forms, parts of or all of this work I would therefore like to thank Hugh Beale, Steve Weatherill and Paula Giliker for their useful suggestions and Takis Tridimas for providing precious guidance when, a few years ago, I first dealt with unfair terms in EC law in my doctoral thesis I am grateful to my German colleagues, Peter Rott and Katja Ziegler for answering my questions on German law and to Erika Szyszczak for providing useful feedback on a paper on public services, which constituted the background to chapter I am very much indebted to Richard Hart, who believed in this project, and to all the staff at Hart Publishing, who have been incredibly helpful I also owe a ‘thank you’ to my own college, St Hilda’s, for providing an inspiring and friendly setting for the writing of this book Finally, on both a professional and personal level, I wish to thank Professor Marco Ricolfi of the University of Torino who encouraged my first steps in the academic world (A) Nebbia Prelims 15/11/06 13:35 Page viii (A) Nebbia Prelims 15/11/06 13:35 Page ix Contents Table of Cases xi Introduction Directive 93/13 and EC Consumer Law and Policy A brief outline of Directive 93/13 The EC involvement in consumer policy and the roots of Directive 93/13 The rationale of the directive: the internal market argument The consumer protection argument The future of Directive 93/13 Unfair Terms Regulation: A Comparative Study Overview The rationale of unfair terms control in Italy and England Implementation of Directive 93/13 in England and in Italy Unfair Terms Control in England and Italy 21 22 23 24 34 40 45 Formal controls Substantive controls Different methods of adjudication 45 57 65 Subjective Scope of Application 69 The consumer in EC law National traditions Areas of conflict between the domestic and the European definitions The business party Application to Public Services The national traditions A ‘European’ approach to public services in Directive 93/13 69 75 83 91 95 97 103 Objective Scope of Application 115 Individually negotiated terms ‘Core’ exclusions Contracts relating to land 116 124 132 (A) Nebbia Prelims 15/11/06 13:35 Page x x Contents Formal and Substantive Controls 135 Formal controls Substantive controls Different methods of adjudication 135 143 152 Conclusion: A European Tradition? 165 Convergence and divergence in the interpretation of Directive 93/13 The European Court of Justice as the engine of European integration? 165 168 Appendix I Directive 93/13 173 Appendix II National Legislation 185 England France Germany Italy Index 187 206 209 217 223 (L) Nebbia Appendix II 15/11/06 13:40 Page 212 212 Appendix II (fictitious declarations) a provision whereby a declaration of the user’s contractual partner is deemed or not deemed to have been made by him if he does or fails to a particular act, unless a) he is allowed a reasonable period within which to make an express declaration and b) the user undertakes to draw to his attention at the beginning of the period the particular significance of his conduct; this does not apply to contracts in which the whole of Part B of the contracting rules for award of public works contracts is incorporated; (fictional receipt) a provision which provides that a declaration by the user of particular importance is deemed to have been received by the other party; (winding-up of contracts) a provision by which, in the event that one of the parties to the contract terminates the contract or gives notice to terminate it, the user can demand a) unreasonably high remuneration for the utilisation or use of a thing or a right or for performance made, or b) unreasonably high reimbursement of expenditure; (unavailability of the object of performance) a stipulation permitted under above of the user’s right to free himself of his obligation to perform the contract if the object of the performance is not available, unless the user agrees a) to inform the other party immediately of the unavailability, and b) immediately to refund counter-performance by that party § 309 Clauses whose invalidity is not subject to appraisal Even where derogation from the statutory provisions is permissible, the following are invalid in standard business terms: (price increases at short notice) a provision which provides for an increase in the remuneration for goods or services that are to be supplied within four months of the conclusion of the contract; this does not apply to goods or services supplied in the course of a recurring obligation; (right to refuse to perform) a provision by which a) the right under § 320 of the contractual partner of the user to refuse to perform is excluded or restricted, or (L) Nebbia Appendix II 15/11/06 13:40 Page 213 National Legislation 213 b) a right of retention of the contractual partner of the user, in so far as it arises from the same contractual relationship, is excluded or restricted, in particular by making it subject to recognition by the user of the existence of defects; (prohibition of set-off) a provision by which the contractual partner of the user is deprived of the right to set off a claim which is undisputed or has been declared final and absolute; (notice, period for performance) a provision by which the user is relieved of the statutory requirement to give notice to the other party to perform or to fix a period for performance or supplementary performance by him; (lump-sum claims for damages) stipulation of a lump-sum claim by the user for damages or for compensation for reduction in value, if a) the lump sum in the cases in question exceeds the damage expected in the normal course of events or the reduction in value which normally occurs, or b) the other party is not given the express right to prove that damage or reduction in value has not occurred or is materially lower than the lump sum agreed; (penalty) a provision by which the user is entitled to receive payment of a penalty in the event of non-acceptance or late acceptance of performance, delay in payment or in the event that the other party withdraws from the contract; (exclusion of liability for death, injury to body and health and for gross fault) a) (death and injury to body and health) exclusion or limitation of liability for losses arising out of death, injury to body or health caused by negligent breach of duty by the user or a deliberate or negligent breach of duty by his statutory agent or a person employed by him to perform the contract; b) (gross fault) exclusion or limitation of liability for other losses caused by a grossly negligent breach of duty by the user or a deliberate or grossly negligent breach of duty by a statutory agent of the user or by a person employed by him to perform the contract; a) and b) above not apply to restrictions of liability in the terms of transport, authorised in accordance with the Passenger Transport Act, of trams, trolley buses and motor vehicles in scheduled services, in so far as they not derogate, to the detriment of passengers, from the Regulation concerning the terms of transport by tram and trolley bus and by motor vehicles in scheduled services of 27 February 1970; b) above does not apply to restrictions of liability for State-approved lottery or raffle contracts (L) Nebbia Appendix II 15/11/06 13:40 Page 214 214 Appendix II (other exclusions of liability in the event of breach of duty) a) (exclusion of the right to withdraw from the contract) a provision which, upon a breach of duty for which the user is responsible and which does not consist in a defect of the thing sold or the work, excludes or restricts the other party’s right to withdraw from the contract; this does not apply to the terms of contract and tariff rules referred to in no on the conditions set out therein; b) (defects) a provision by which, in contracts for the supply of new, manufactured things or of work, aa) (exclusion and reference of claims to third parties) claims against the user on account of a defect as a whole or with regard to individual elements of it are excluded entirely, restricted to the assignment of claims against third parties, or which make the pursuit of legal proceedings against third parties a condition precedent; bb) (restriction to supplementary performance) claims against the user are restricted, entirely or with regard to individual elements, to a right to supplementary performance, unless the other party is given an express right to claim a price reduction if supplementary performance is unsuccessful or, except where the defects liability is in respect of building work, to choose to terminate the contract ; cc) (expenditure incurred in the course of supplementary performance) the user’s obligation to bear the expenditure necessary for supplementary performance, in particular the costs of carriage, transport, labour and materials, is excluded or restricted; dd) (withholding of supplementary performance) the user makes supplementary performance conditional on the prior payment of the entire price or, having regard to the defect, an unreasonably high proportion thereof; ee) (time-limit for notice of defects) the user fixes a period within which the other party must give notice of nonobvious defects which is shorter than the period permitted under ff) below; ff) (facilitation of limitation) facilitates the limitation of claims on account of defects in the cases set out in § 438 (1), no and § 634a (1), no 2, or, in other cases, results in a limitation period of less than one year from the date on which the statutory period of limitation begins; this does not apply to contracts in which the whole of Part B of the contracting rules for award of public works contracts is incorporated; (L) Nebbia Appendix II 15/11/06 13:40 Page 215 National Legislation 215 (period of recurring obligations) in a contractual relationship concerning the periodic delivery of goods or the periodic supply of services or work by the user, a) a contract duration which binds the other party for more than two years, b) a tacit extension of the contractual relationship which binds the other party for a period of more than one year in each particular case, or c) to the detriment of the other party, a period of notice to terminate the contract which is more than three months prior to the expiration of the initial or tacitly extended period of the contract; this does not apply to contracts for the supply of things sold as a unit, to insurance contracts or contracts between the owners of copyrights and of claims and copyright collecting societies within the meaning of the Protection of Copyrights and Related Rights Act; 10 (change of contract partner) a provision whereby in sales contracts, contracts for the supply of services or contracts for work a third party assumes or may assume the rights and obligations of the user under the contract, unless the provision a) specifies the third party by name, or b) gives the other party the right to withdraw from the contract; 11 (liability of an agent on conclusion of the contract) a provision by which the user imposes on an agent who concludes the contract for the other party, a) the agent’s own liability or duty to perform the contractual obligation without having made an express and separate declaration in that regard, or b) where the agent lacks authority, liability which exceeds that under § 179; 12 (burden of proof) a provision by which the user alters the burden of proof to the detriment of the other party in particular by a) imposing the burden in respect of circumstances which fall within the scope of the user’s responsibility, or b) requiring the other party to acknowledge particular facts; Subsection b) above does not apply to acknowledgments of receipt which are separately signed or bear a separate, qualified electronic signature; 13 (form of notices and declarations) a provision by which notices or declarations to be given to the user or third parties are subject to a stricter requirement than the need for writing or to special requirements with regard to receipt (L) Nebbia Appendix II 15/11/06 13:40 Page 216 216 Appendix II § 310 Scope of application (1) § 305 (2) and (3) and §§ 308 and 309 not apply to standard business terms which are proffered to a businessperson, a legal person governed by public law or a special fund governed by public law In those cases § 307 (1) and (2) nevertheless applies to the extent that this results in the invalidity of the contractual provisions referred to in §§ 308 and 309; due regard must be had to the customs and practices applying in business transactions (2) §§ 308 and 309 not apply to contracts of electricity, gas, district heating or water supply undertakings for the supply to special customers of electricity, gas, district heating or water from the supply grid unless the conditions of supply derogate, to the detriment of the customer, from Regulations on general conditions for the supply of tariff customers with electricity, gas, district heating or water The first sentence applies mutatis mutandis to contracts for the disposal of sewage (3) In the case of contracts between a businessperson and a consumer (consumer contracts) the rules in this section apply subject to the following provisions: Standard business terms are deemed to have been proffered by the businessperson, unless the consumer introduced them into the contract; §§ 305c (2) and §§ 306, 307 to 309 of the present Act and Article 29a of the Introductory Act to the Civil Code apply to pre-established conditions of contract even if they are intended for use only once and in so far as, because they are pre-established, the consumer could not influence their content When deciding whether there has been unreasonable detriment under § 307 (1) and (2) the circumstances surrounding the conclusion of the contract must also be taken into account (4) This section does not apply to contracts in the field of the law of succession, family law and company law or to collective agreements and private- or publicsector works agreements When it is applied to labour contracts, appropriate regard must be had to the special features of labour law; § 305 (2) and (3) is not to be applied Collective agreements and public and private sector works agreements are equivalent to legal rules within the meaning of § 307 (3) (L) Nebbia Appendix II 15/11/06 13:40 Page 217 National Legislation 217 Relevant Provisions of the Italian Civil Code (codice civile) Article 1229 Exemption clauses Any agreement that excludes or restricts the liability for cases of fraud or gross negligence is void Any agreement exempting or limiting liability in cases where the act of the debtor or his auxiliaries constitutes a breach of duties arising from rules of public order is void Article 1341 Standard form contracts Standard terms of contract prepared by one of the parties are effective as to the other, only if at the time of formation of the contract the latter knew of them, or should have known of them by using ordinary diligence In any case, some specific types of clauses are not effective unless specifically approved in writing Such clauses are those which establish, in favour of him who has prepared them in advance, limitations on liability, the power of withdrawing from the contract or suspending its performance, or which impose time limits involving forfeitures on the other party, limitations on the power to raise defences, restrictions on contractual freedom in relations with third parties, tacit extension or renewal of the contract, arbitration clauses, or derogations from the competence of courts Article 1342 Contract made by forms or formularies In contracts made by subscribing to forms or formularies prepared for the purpose of regulating certain contractual relationships in a uniform manner, terms added to such forms or formularies prevail over the original terms of said forms or formularies when they are incompatible with them, even though the latter have not been struck out This does not affect the application of Art 1341(2) Article 1370 Interpretatio contra proferentem Terms contained in standard terms contracts (1341) or in forms or formularies (1342) which have been prepared by one of the contracting parties must be interpreted, in case of doubt, in favour of the other party (L) Nebbia Appendix II 15/11/06 13:40 Page 218 218 Appendix II Relevant provisions of the Italian Consumer Code (Codice del consumo) dlgs settembre 2005, no 206 PART I GENERAL PROVISIONS TITLE I General provisions and aims [omissis] Art Definitions For the purposes of the present Code the following meanings are to be given: a) consumer or user: the natural person who acts for purposes which are outside the business or professional activity he may carry out; b) consumers’ or users’ associations: the entities which have as their exclusive statutory aim the protection of the interests and of the rights of consumers or users; c) professional: the natural or legal person who acts within the framework of his business or professional activity, or his intermediary ; [omissis] PART III RELATIONSHIPS WITH THE CONSUMER TITLE I Of consumer contracts in general Art 33 Unfair terms in a contract between a professional and a consumer Terms in a contract between a consumer and a professional are regarded as unfair when, in spite of the good faith, they cause a significant imbalance in the rights and obligation arising out of the contract to the detriment of the consumer Unless otherwise proven, terms will be presumed to be unfair when their object or effect is to: (L) Nebbia Appendix II 15/11/06 13:40 Page 219 National Legislation 219 a) Exclude or limit the liability of the professional in the event of death or injury to the consumer resulting from an act or omission of the professional; b) Exclude or limit the actions or legal rights of the consumer vis-à-vis the professional or another party in the event of total or partial nonperformance or inadequate performance by the professional; c) Exclude or limit the possibility for the consumer to offset a debt owed to the professional against any credit which the consumer may have against him; d) Make an agreement binding on the consumer whereas performance by the professional is subject to a condition whose realisation depends on his own will alone; e) Allow the professional to retain sums paid by the consumer where the latter does not conclude the contract or cancels it, without providing for the consumer to receive compensation of twice that amount from the professional where the latter does not conclude the contract or cancels it; f) Require any consumer who fails to perform his obligation or does it with delay to pay a disproportionately high sum as agreed damage, penalty or as any other type of compensation; g) Authorise the professional to cancel the contract where the same facility is not granted to the consumer, or permit the professional to retain, even in part, the sums paid for performance not yet carried out by him where it is the professional himself who dissolves the contract; h) Enable the professional to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; i) Impose a deadline on the consumer to express his desire not to extend the contract which is unreasonably early in respect of the expiry of the contract; l) Bind the consumer to terms with which he had no opportunity of becoming acquainted before the conclusion of the contract; m) Enable the professional to unilaterally alter the terms of the contract or any characteristics of the product or service to be provided without a valid reason specified in the contract n) Provide for the price of goods or services to be determined at the time of delivery or supply; o) Allow the professional to increase the price of the goods or services without giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; p) Give the professional the right to determine whether the goods or services supplied are in conformity with the contract, or give him the exclusive right to interpret any term of the contract; q) Limit the professional’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality; (L) Nebbia Appendix II 15/11/06 13:40 Page 220 220 Appendix II r) Limit or exclude the possibility for the consumer to refuse to fulfil all his obligations where the professional does not perform his; s) Give the professional the possibility of transferring his rights and obligations under the contract, even with the previous consent of the consumer, where this may reduce the guarantees for the consumer; t) Restrict the consumer’s right to take legal action by imposing time limitations, unconditioned duties to perform, derogation to the competence of courts prescribed by the law, restrictions on the evidence available to him, impositions on him of a burden of proof which, according to the applicable law, should lie with another party to the ontract, or restrictions to his freedom to contract with thirds; u) Establishing as competent forum a court that sits in a place which is different from the consumer’s place of residence or domicile; v) Subject the transfer of a right or the acceptance of an obligation to a conditions whose realisation depends on the professional’s own will alone while the consumer is immediately bound, save for the provision of Art 1355C.c If the contracts concerns the supply of financial services of indeterminate duration, the professional can, without prejudice to nos h) and m) of paragraph 2: a) terminate unilaterally the contract without notice where there is a valid reason, provided that the supplier is required to inform the consumer immediately; b) alter the conditions of the contract where there is a valid reason, provided that the supplier is required to inform the consumer with reasonable notice and that the consumer is free to cancel the contract If the contracts concerns supply of financial services, the professional can alter, without notice, as long as there is a valid reason, in derogation to nos n) and o) the interest rate or any other charge for the supply of the financial service agreed at the moment of conclusion of the contract, provided that the supplier is required to inform the consumer immediately and that the consumer is free to cancel the contract Nos h), m), n) and o) of paragraph not apply to contract concerning securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control and not apply to contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency Nos n) and o) not apply to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described (L) Nebbia Appendix II 15/11/06 13:40 Page 221 National Legislation 221 Art 34 Assessment of the unfair nature of terms The unfairness of a term is assessed by taking into account the nature of the goods or services for which the contract was concluded and by referring to the circumstances attending the conclusion of the contract and to the other terms of the contract or of another contract to which it is related or dependent Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price of the goods or services as long as these elements are identified in plain, intelligible language Terms which reproduce statutory provisions or provisions which reproduce provisions or implement principles contained in international conventions to which all EU Members States or the EU are part shall not be regarded as unfair Terms or parts of terms which have been individually negotiated shall not be regarded as unfair In contracts made by signing forms or contracts drafted in advance to regulate in a uniform way certain contractual relationships, the burden of proving that terms, or parts of terms, even though unilaterally drafted, have been individually negotiated with the consumer, lies on the professional Art 35 Form and interpretation In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail The rule of para shall not apply in the cases regulated by article 37 Art 36 Voidability of unfair terms Terms regarded as unfair under article 33 and 34 shall not be binding but the contract will continue to bind the parties for the rest Terms which, even though negotiated, have as their object or effect to: a) Exclude or limit the liability of the professional in the event of the death or personal injury to the consumer resulting from an act or omission of the professional; (L) Nebbia Appendix II 15/11/06 13:40 Page 222 222 Appendix II b) Exclude or limit the actions or legal rights of the consumer vis-a -vis the professional or another party in the event of total or partial nonperformance or inadequate performance by the professional; c) Bind the consumer to terms with which he had no opportunity of becoming acquainted before the conclusion of the contract; shall be regarded as voidable Terms will be voidable only to the advantage of the consumer and voidability can be raised by the judge by his own motion A retailer has the right to claim compensation from the supplier for the damages he may have suffered where terms in the retailer’s contract have been declared unfair Terms according to which the law of a non-Member country is the law applicable to the contract are avoidable if they have the effect of depriving the consumer of the protection ensured by the present chapter where the contract has a closer connection with the territory of a Member State of the European Union Art 37 Preventive actions The associations which are representative of consumers’ interests mentioned by article 137, professional associations, Chambers of Commerce, Industry, Craftsmanship and Agriculture can bring legal actions against professionals or professional’s associations who use or who recommend the use of standard contract terms and can apply to the competent court for interim relief measures in order to prevent them from using terms which have been declared unfair according to this chapter The interim measure can be awarded, in case of fair and urgent reasons, in accordance with Art 669-bis ff of the code of civil procedure The court can order that the decision is published in one or more newspapers, of which at least one must have national circulation Preventive actions taken by consumers’ associations shall, for whatever is not covered by the present article, be regulated by article 140 Art 38 Other applicable provisions Contracts between consumer and professionals shall be regulated by the civil code in all respects that are not regulated by the present code (M) Nebbia Index 15/11/06 13:40 Page 223 Index Aequivalenzprinzip 161, 166 Abstract assessment and reasonable expectations 131 in the context of Directive 93/13 147 in the context of UCTA 56, 60–61, 66–68 in the context of the UTCCR 159- 160, 163 Italian law 160 Abuse of power French law 34, 89, 90 in general 27, 6, 21, 90 Acte clair 168–169 Acquis communautaire 22, 91–92, 134, 135, 166 Agreed damages clauses 29 Amsterdam Treaty 104 Avantage excessif (see excessive advantage) Average consumer 139–141 Bargaining power and consumers 74, 83 as a contextual factor 60, 159 English law 36, 38–39, 41, 59, 65, 84, 122 in competition law 84 in Directive 93/13 144, 149, 166 in general 34–35, Italian law 39–40, 122 Breach of a fundamental term (see fundamental breach) ‘But for’ approach 127 Business party business to business contracts 24, 25–26, 66, 86, 123 in Directive 93/13 91–93 liability 31, 79, 87, 92, 123 small businesses 61, 82, 87–88, 123 Cahiers des charges 99 Choice of law 13, 17 CLAB database 22, 118 Clausole abusive 145 (see also clausole vessatorie) Clausole vessatorie in the civil code 32–33, 37, 40 , 50, 117 in the consumer code 145 Clausole bilaterali 39 Commission for unfair terms (France) 27 Competition law and consumers 70 and public services 105–110 and unfair terms 34 damages for breach of, 83–84 Conformity (of goods to the contract) 154, 168 Conoscenza, conoscibilità (of contract terms) 32, 46, 49–50, 52, 64, 138 Consumer average consumer 139–141 businesses as, 83–88 competence-based approach 71 confident consumer 12–13, 19–20 consumers’ associations 34, 41–42, 77, 159 EC law 70–72 English law 30, 38, 54, 58, 75–76, 78–81, 86 French law 27, 34, 75 Function-based approach 72 German law 76 in competition law 69–70 in the Brussels Regulation 70, 73–74 in the EC Treaty 4–5 in the Rome Convention 13 inexperienced 141 Italian law 77–78, 81–83 legal persons as, 83 Consumer protection and Directive 93/13 21 as a mandatory requirement 10 in the EC 4–7, 9,70 Contextual factors 60–61, 66, 158–160 Contract as a promise 126, 149, 162 cancellation of, 152, 163 circumstances surrounding conclusion of, 3–4, 66–67, 132, 159 for the provision of public services 96, 97–103, 105–110 on standard terms (see standard form contracts) signed contract 35, 37, 38, 46, 50, 122 subject matter 4, 27, 49, 124–129, 129–132, 167 Contract terms definitional approach 125–132 exclusionary approach 125–132 individually negotiated terms (see negotiation) relating to price 4, 26, 27, 115, 124–125, 130–132 ‘Core’ terms 27, 124–129, 129–132 Damages for breach of competition law 83–84 non-material 170 retailer’s right to, 86 Decreto legge 43 (M) Nebbia Index 15/11/06 13:40 Page 224 224 Index ‘Default’ rules as ‘mandatory’ rules 96, 101–102, 110, 115 defective goods 25, 30, 89, 150 German law 26, 111 De minimis 18 Department of Trade and Industry (DTI) 41,42, 87, 103, 132, 133 Distance marketing of financial services 91 Distance sales directive objective scope of application 134 subjective scope of application 70, 92, 93, 122 Distortions of competition 7, 11–12, 15, 19–21, 171 Doorstep sales directive minimum harmonization formula 141 objective scope of application 134 subjective scope of application 70, 72, 92, 93, 122 Duty of information as an obstacle to trade 17 Economic activity 107–110 Effet utile, effectiveness 83, 97, 166, 168, 171 Equal treatment 81–83, 84–85 Excessive advantage 27, 99, 144 Exclusion clauses (see exemption clauses) Exemption clauses and fundamental breach 54,55 and free movement 17 and incorporation 29 and interpretation 52–54, 66 German law 26 Italian law 33,58 UCTA 30, 86–87, 125–128, 152 Expectations and interpretation 56, 65, 66 and incorporation 47, 49, 65, 66 contextual expectations 158 normative expectations 153–155, 162–163 reasonable expectations 130–131, 155–158, 163, 165, 168 Fair dealing 48, 146, 149 Fairness 143–152 and formal controls 45, 56 Directive 93/13 3, 4, 105, 108, 143–145, 149–151 English law 28, 58, 65, 66, 146–148, 161–162 French law 27 German law 25–26, 161 Italian law 62, 138, 145–146, 160 (see also unfair terms) Fair and reasonable 67, 138, 147–148 Freedom of contract 5, 23, 34, 48, 59, 65, 68 Fundamental breach 28, 29, 54–56, 125 Good faith Directive 93/13 143–152, Italian law 62–64 objective 145,148 procedural 147 subjective 145, 148 substantive 147 Goods free movement of, 9–10, 11, 13, 16–21 166 and Directive 93/13 132–134 nature of, 4, 69, 105 unsolicited sale and supply of 30–31, 55, 58, 79, 101, 113–114 Guarantee deposit guarantee 145 in consumer sales 11, 14, 70 90, 161 written 30 In the course of a business 29–30, 35–36, 78–81, 92–93, 116 Incorporation English law 28, 38 46–49, 66–67, 158 German law 24, 49 Italian law 46, 49–52 Inequality of bargaining power (see bargaining power) Inhaltskontrolle 25, 100 Insurance availability of, 59, 60, 61, 66 contracts 55, 60, 81, 125, 128, 137, 161 Internal market and consumer policy 6, 7, 15 and Directive 93/13 3, 9–12, 21, 176 in general, 20–21, 90, 91 public services 103–104, interpretatio contra proferentem 4, 33, 142 Interpretation of EC law 20, 133, 165, 166, 169 Italian law 33, 51, 55, 62, 142 English law 28, 29, 52–55, 56, 65–66, 142 German law 25, 37 in Directive 93/13 142 Injunctions 42, 44, 157, 169 Kelsen, H 68 Labelling 70, 137 Land, contracts relating to, 132–134 Limitation clauses Directive 93/13 English law 55, 60, 61, 123, 125, 153 Italian law 32, 126–127 Mandatory requirements (Cassis) 14, 15, 111–112 Mandatory provisions 95–96, 100–103, 110–114, 166 Methods of adjudication abstract fairness 160–162 annex-based 152–153 (M) Nebbia Index 15/11/06 13:40 Page 225 Index 225 contextual elements 158–160 in general 162–163, 166–168 normative expectations 153–155 reasonable expectations 155–158 MEQR 17, 20 Minimum harmonization 9, 88 Misleading advertising 14, 70, 71 139–140 Misrepresentation 31, 46, 146 Negligence Italian law 33, 127 English law 29–31, 52–54, 57–58, 61, 66, 152 Negotiation (of contract terms) Directive 93/13 3, 90, 115, 118–120, 166 English law 59, 87, 116–117, 121–124, 159 French law 34 German law 34 Italian law 32, 36–37, 117–118, 120–121, 148 Obstacle to trade consumer protection, as 10–11 Directive 93/13 12–14 in general 16–19, 19–21, 85, 90 Occupation of the field 89 Office of Fair Trading (OFT) 42, 130, 138, 151–156, 159, 163 Opt-out provisions (see default rules) Ordre public technologique 64 Ordine pubblico 58 Package travel 70, 131, 155, 170–171 Penalty clauses 51 Plain intelligible language 4, 37, 50, 115, 135–141 and core exclusions 4, 124 Pre-emption 9, 88–89, 91 Preliminary references 165–166, 170 Price, term relating to 4, 26, 27, 115, 124–125, 130–132 Preventive actions 42, 44, 158, 159 , 163 Product liability 70 Products safety 70 Professionista 93 Public order 33, 64 Public service and competition law 103–110, 110–114 definition 95, 166 Directive 93/13 95–97, 100–103 French law 99–100, 171 German law 100 Italian law 98–99 UCTA 97–98 Qualified Majority Voting Rawls, J 150 Reasonableness and Directive 93/13 41, 144 and incorporation 47–48, 66 UCTA 30, 38, 58–62, 66–67,, 116, 166 Selling Arrangement 16, 18 Separation of powers (France) 99, 171 Significant imbalance and methods of adjudication 152–163 Directive 93/13 3, 143–145 English law 146–148 Italy 145–146 possible meanings 148–152 Single European Act Service of General Interest (SGI) 95, 103–105 Small business see Business party Solidarity 108–109 Standard form contracts Directive 93/13 6, 9, 21, 85, 89–90, 118–120 German law 24–26, 34, 49, 76, 100 individually negotiated terms 115, 116 in general 23 Italian law 32–33, 36–37, 117, 122 English law 35–36, 49, 116–117, 121–122, 123 Statutory provisions (see regulatory provisions) Subject matter 4, 27, 49, 124–132 Reasonable expectations (see expectations) Regulatory provisions Directive 93/13 95–96 German law 100 in general 103 Italian law 101–102 English law 102–103 Timeshare 132 Total harmonization 91 Transparency 4, 25, 135–141, 156 Transaction costs 11, 15, 89 Treu und Glauben (see good faith) Unreasonable disadvantage (German law) 25–26, 62, 139, 144, 155 Unangemessene Benachteiligung (see unreasonable disadvantage) Unternehmer 24, 25, 76 Waffengleicheit 161, 166 Welfare state (M) Nebbia Index 15/11/06 13:40 Page 226