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1993/0013 EN cercato: 'unfair terms' . Output generated live by software developed by IusOnDemand srl


index unfair terms:


whereas unfair terms:


definitions:


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Article 1

1.   The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller_or_supplier and a consumer.

2.   The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.

Article 2

For the purposes of this Directive:

(a)

‘ unfair terms’ means the contractual terms defined in Article 3;

(b)

‘ consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

(c)

‘ seller_or_supplier’ means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.

Article 3

1.   A contractual term which has not been individually negotiated 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.

2.   A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller_or_supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

3.   The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.

Article 4

1.   Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

2.   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 and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.

Article 5

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. This rule on interpretation shall not apply in the context of the procedures laid down in Article 7 (2).

Article 6

1.   Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller_or_supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.

2.   Member States shall take the necessary measures to ensure that the consumer does not lose the protection granted by this Directive by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States.

Article 7

1.   Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

2.   The means referred to in paragraph 1 shall include provisions whereby persons or organizations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

3.   With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.

Article 8

Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.

Article 9

The Commission shall present a report to the European Parliament and to the Council concerning the application of this Directive five years at the latest after the date in Article 10 (1).

Article 10

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1994. They shall forthwith inform the Commission thereof.

These provisions shall be applicable to all contracts concluded after 31 December 1994.

2.   When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3.   Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.

Article 11

This Directive is addressed to the Member States.

Done at Luxembourg, 5 April 1993.

For the Council

The President

N. HELVEG PETERSEN

(1)  OJ No C 73, 24. 3. 1992, p. 7.

(2)  OJ No C 326, 16. 12. 1991, p. 108 and

OJ No C 21, 25. 1. 1993.

(3)  OJ No C 159, 17. 6. 1991, p. 34.

(4)  OJ No C 92, 25. 4. 1975, p. 1 and

OJ No C 133, 3. 6. 1981, p. 1.

ANNEX

TERMS REFERRED TO IN ARTICLE 3 (3)

1.   Terms which have the object or effect of:

(a)

excluding or limiting the legal liability of a seller_or_supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller_or_supplier;

(b)

inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller_or_supplier or another party in the event of total or partial non-performance or inadequate performance by the seller_or_supplier of any of the contractual obligations, including the option of offsetting a debt owed to the seller_or_supplier against any claim which the consumer may have against him;

(c)

making an agreement binding on the consumer whereas provision of services by the seller_or_supplier is subject to a condition whose realization depends on his own will alone;

(d)

permitting the seller_or_supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller_or_supplier where the latter is the party cancelling the contract;

(e)

requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;

(f)

authorizing the seller_or_supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller_or_supplier to retain the sums paid for services not yet supplied by him where it is the seller_or_supplier himself who dissolves the contract;

(g)

enabling the seller_or_supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so;

(h)

automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early;

(i)

irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j)

enabling the seller_or_supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract;

(k)

enabling the seller_or_supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided;

(l)

providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases 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;

(m)

giving the seller_or_supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract;

(n)

limiting the seller's or supplier's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality;

(o)

obliging the consumer to fulfil all his obligations where the seller_or_supplier does not perform his;

(p)

giving the seller_or_supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter's agreement;

(q)

excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

2.   Scope of subparagraphs (g), (j) and (1)

(a)

Subparagraph (g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately.

(b)

Subparagraph (j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately.

Subparagraph (j) is also without hindrance to terms under which a seller_or_supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract.

(c)

Subparagraphs (g), (j) and (1) do not apply to:

—

transactions in transferable 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;

—

contracts for the purchase or sale of foreign currency, traveller's cheques or international money orders denominated in foreign currency;

(d)

Subparagraph (1) is without hindrance to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described.

whereas
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