16 - Unfair contract terms

Summary

Introduction

The Unfair Contract Terms Directive (93/13/EEC) represents not only a significant contribution to the development of EU consumer policy, but is also the cornerstone of the EU private law architecture.

The first draft proposals for a directive on unfair terms date back to the 1970s, when an intense burst of legislative activity on the part of the Member States also took place: in 1976, the Federal Republic of Germany adopted a statute on unfair contract terms; in 1977, the United Kingdom did so, too; and France followed in 1978. The introduction of different regulatory frameworks for unfair terms in several Member States somehow delayed reaching a sufficient consensus at the European level to proceed with work in that area. In addition, there were conflicting visions of the appropriate intensity of social regulation on the matter and of the acceptable degree of Community involvement in its realisation. Work resumed in 1984, but it took another nine years before the final text was eventually approved on 5 April 1993. As a whole, almost twenty years passed before the idea of a directive on unfair terms became reality. Such a long lapse of time made the directive increasingly difficult to fit within the existing domestic frameworks, which had, meanwhile, consolidated over the years. As a result, the originally innovative force of the directive turned into a ‘disturbing’ element for the national legislators, and Community intervention ended up following, rather than triggering and leading, law reform in the Member States.