1 / 15

1st Corporate Counsel Symposium Unfair Terms in Consumer Contracts Dirk Tirez dirk.tirezpost.be

. . Agenda Objectives of unfair contract terms Scope of application Comparative analysis: UK, France, Belgium Transparency requirements General principles and burden of proof Black and grey lists Interpretation, effect and enforcement Conclusion. . . Objectives of unfair contract termsCouncil Directive 93/13/EEC on unfair terms in consumer contractsProposal of the EP and the Council on consumer rights COM (2008) 614 final, 8 October 2008Consumer protectionFair business-to-consumer commercial practicesRestoration of the balance of power.

maxim
Download Presentation

1st Corporate Counsel Symposium Unfair Terms in Consumer Contracts Dirk Tirez dirk.tirezpost.be

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

    1. 1st Corporate Counsel Symposium Unfair Terms in Consumer Contracts Dirk Tirez dirk.tirez@post.be

    2. Agenda Objectives of unfair contract terms Scope of application Comparative analysis: UK, France, Belgium Transparency requirements General principles and burden of proof Black and grey lists Interpretation, effect and enforcement Conclusion

    3. Objectives of unfair contract terms Council Directive 93/13/EEC on unfair terms in consumer contracts Proposal of the EP and the Council on consumer rights COM (2008) 614 final, 8 October 2008 Consumer protection Fair business-to-consumer commercial practices Restoration of the balance of power

    4. Scope of application “Consumer”: any natural person (Joined cases C-54199 and C-542/99 Idealservice Srl) “Trader”: any natural or legal person “Goods, services”: products Contract terms drafted in advance by the trader or a third party, to which the consumer has agreed, with no power to influence the content, in particular where such contract is part of a pre-formulated standard contract

    5. Comparative analysis: UK, France, Belgium UK – OFT (www.oft.gov.uk) Unfair contract terms guidance Consumer Contract Regulations 1999, as amended Consumer Protection from Unfair Trading Regulations 2008 (CPRs) Guidance for market sectors

    6. Comparative analysis: UK, France, Belgium France CCA – Commission des Clauses Abusives Recommendations Advisory role to courts Code de la Consommation, article LB2-1 www.clauses-abusives.fr Legislation and case law of the French courts consulted by 2 million people in 2008

    7. Comparative analysis: UK, France, Belgium Belgium Art. 31-32 of WHPC “Onrechtmatige bedingen in consumenten overeenkomsten” FOD Economie – Dienst bescherming van de Consumentenverkeer Raad voor het Verbruik – Commissie voor onrechtmatige bedingen www.mineco.fgov.be

    8. Transparency requirements Plain, intelligible language and legibility Real opportunity to become acquainted Express consent to any payment in addition to the remuneration No representational requirements

    9. General principles A contract is 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 Assessment at the time of the conclusion of the contract, taking into account all circumstances

    10. Burden of proof Where the trader claims that a contract term has been individually negotiated, the burden of proof shall be incumbent upon him (Case C-237/02 Freiburger Kommunalbauten)

    11. Black list: unfair terms in all circumstances

    12. Grey list: unfair unless the trader proves they are fair

    13. Examples of terms that may be unfair Consumers being misled about the contract, or their legal rights Consumers being denied full redress if things go wrong Consumers being tied into the contract unfairly The business not having to perform its obligations Consumers unfairly losing pre-payments if the contract is cancelled The business varying the terms after they have been agreed Consumer being subject to unfair penalties

    14. Interpretation and effect In case of doubt, the interpretation most favorable to the consumer shall prevail Unfair terms are not binding upon the consumer Contract continues to bind the parties if it can remain in force without the unfair terms

    15. Enforcement “Adequate and effective” Case C-168/05 Centro Movil Milenium SL Case C-473/00, Cofidis SA Joined cases C-240/98 to C-244/98 Oceano Grupo Editorial SA Consumer organizations, professional organizations (Case C-167/00, Karl Heinz Henkel) Class actions

    16. Conclusions Develop standard terms and conditions Have a commercial policy on B to C contract terms Examine fairness of the terms across Europe Adopt an adequate complaints handling procedure

More Related