Suchergebnisse

On 8 October 2008, the Commission published its proposal for a "Directive of the European Parliament and of the Council on consumer rights". This horizontal directive, which is based on full targeted harmonization should change and unite the content of Directive 85/577, Directive 93/13, Directive 97/7 and Directive 99/44 and repeal these directives at the same time. The Commission Proposal for a Directive on consumer rights represents an important piece of legislation, which tries to develop a coherent set of rules in European consumer contract law. The introduction of unifi ed common defi nitions, rules on information duties and of central regulation of right of withdrawal for distance and off-premises contracts should affect the current regulatory fragmentation in this fi eld and thus contribute to legal certainty of consumers. However, with the exception of these improvements and certain additional rules, the Proposal largely replicates the content of the current consumer protection directives. The major difference represents the shift from the minimum to full harmonisation principle. The application of this principle will mean the achievement of comparably higher level of consumer protection on the one hand, and the reduction of the existing level of consumer protection in individual states on the other. While full harmonization is suitable for provisions on withdrawal and on specific information duties, it is not appropriate for provisions on remedies in sales contracts and provisions on black and grey list of unfair contract terms. In conclusion, although the Proposal should be improved and revised by the European legislator, it undoubtedly represents a good starting point for a discussion on the future of coherent European consumer contract law.

As the main tool for the achievement of the proper functioning of the internal market, the Union is focused on the process of harmonization. The role of harmonization in the EU's internal market is to remove barriers to trade and to facilitate free movement of goods, persons, services, and capital (as well as payment). This can be achieved in many ways, including through the adoption of harmonization, i.e., approximation measures, such as directives and regulations. The established CJEU case law confirms that the aim of harmonization measures is to 'reduce disparities between legal systems.' This aim's realization very often depends upon the form of the chosen harmonization measure and the level of harmonization the measure is based on (e.g., minimum, maximum, full (targeted) harmonization). However, today, we are faced with changes in the regulatory approach of the EU legislator and these changes are greatly affecting the process of harmonization. Due to the increased level of harmonization, EU directives are starting to appear and function more like EU regulations, and vice versa. Because of numerous optional clauses, clauses of minimal harmonization, and the so- called 'opening clauses', EU regulations are not reducing but enabling 'disparities between legal systems.' As an example, authors are analyzing the EU's General Data Protection Regulation (GDPR) containing more than 69 opening clauses, which play an important role in the process of harmonization and present an instrument of interplay between EU law and Member States' laws. Therefore, it remains to be answered within the lines of this paper whether the role of opening clauses is in compliance with the aim of harmonization in the EU law.

As the main tool for the achievement of the proper functioning of the internal market, the Union is focused on the process of harmonization. The role of harmonization in the EU's internal market is to remove barriers to trade and to facilitate free movement of goods, persons, services, and capital (as well as payment). This can be achieved in many ways, including through the adoption of harmonization, i.e., approximation measures, such as directives and regulations. The established CJEU case law confirms that the aim of harmonization measures is to 'reduce disparities between legal systems.' This aim's realization very often depends upon the form of the chosen harmonization measure and the level of harmonization the measure is based on (e.g., minimum, maximum, full (targeted) harmonization). However, today, we are faced with changes in the regulatory approach of the EU legislator and these changes are greatly affecting the process of harmonization. Due to the increased level of harmonization, EU directives are starting to appear and function more like EU regulations, and vice versa. Because of numerous optional clauses, clauses of minimal harmonization, and the so-called 'opening clauses', EU regulations are not reducing but enabling 'disparities between legal systems.' As an example, authors are analyzing the EU's General Data Protection Regulation (GDPR) containing more than 69 opening clauses, which play an important role in the process of harmonization and present an instrument of interplay between EU law and Member States' laws. Therefore, it remains to be answered within the lines of this paper whether the role of opening clauses is in compliance with the aim of harmonization in the EU law.

Abstract
Over the years, the UCTD has become one of the core EU directives aiming at the protection of both businesses and consumers (B2C), i.e., at the achievement of the appropriate balance between the parties' rights and obligations. However, the UCTD has also left quite a number of important legal questions unanswered. Besides the general clauses on the assessment of the unfairness of contractual terms, there remains a high degree of uncertainty as to the meaning of the transparency requirement and the legal consequences of unfair contractual terms. As a result, in spite of CJEU settled case law, as well as European Commission interpretation guidelines, there are diverging patterns in the national case law of the Member States. The aim of this paper is to investigate these diverging patterns by looking more closely into national case law and into the relationship between the CJEU and the Member States courts, taking as a case study the way in which the UCTD was applied in five countries (Austria, Croatia, France, Italy and Poland) in cases involving consumer loans indexed to the Swiss franc. The survey shows that there are noticeable differences in the interpretation of core concepts underlying the UCTD, such as the unfairness test, the exclusions from the unfairness assessment, and the transparency requirement. The most problematic areas, however, concern the legal consequences of the unfairness of contractual terms. By relying on the analysis of these and related issues, the authors have come to the conclusion that347 even after 30 years of the existence of the UCTD, there are still many important legal questions that need solving.