A Short Biography of the Unfair Contract Terms Directive on the Occasion of Its 30th Anniversary

In: European review of private law: Revue européenne de droit privé = Europäische Zeitschrift für Privatrecht, Band 31, Heft 6, S. 1143-1174

Abstract

This year marks the 30th anniversary of the adoption of Council Directive 93/ 13/EEC on Unfair Terms in Consumer Contracts. The article explores how the Court of Justice of the European Union's (CJEU) case law on the Directive has evolved over the last three decades. Contrary to what one may have expected at the time the legislation was passed, the Directive has had a greater impact on the Member States' procedural law than on substantive contract law. In particular, the CJEU has refrained from spelling out a common European standard to assess the fairness of contractual terms in business-to-consumer transactions. Instead, the Court leaves it by and large to domestic courts to determine, on the basis of the applicable national law, whether the substance of a particular clause is unfair and therefore void. On the other hand, the CJEU has been keen to develop procedural requirements for the judicial review of standard terms in consumer contracts, thus significantly restricting the principle of national procedural autonomy in the realm of consumer law. Finally, the article addresses some more recent trends in the CJEU's case law, especially with regard to the legal consequences arising for the contract as a whole where a contractual term is found to be unfair.