Protecting consumers from unfair terms in contracts
Directive 93/13/EEC on unfair terms in consumer contracts
Directive (EU) 2019/2161 amending Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU as regards the better enforcement and modernisation of EU consumer protection rules
WHAT DOES THE DIRECTIVE DO?
Directive 93/13/EEC protects consumers in the EU from unfair terms and conditions which might be included in a standard contract for goods and services they purchase. It introduces the notion of ‘good faith’ to avoid any significant imbalance in mutual rights and obligations.
As part of the New Deal for Consumers, Directive 93/13/EEC has been amended by Directive (EU) 2019/2161, which aims to modernise EU consumer law and improve its enforcement.
The goods and services involved, circumstances of the transaction and all the other terms and conditions have to be taken into account when assessing whether a clause in a contract is fair or not.
The actual price paid for goods or services is not taken into account in this assessment, unless the term in question is not plain and intelligible.
The directive contains a non-exhaustive and indicative list of unfair contract terms. These include requiring consumers to pay unreasonable compensation or holding them to terms they had no time to fully understand before signing the contract.
The wording of all written contracts must be in plain, intelligible language. When there is doubt about the meaning of a term, it should be interpreted in a manner favourable to the consumer.
Contract terms deemed unfair are not binding on consumers, but the rest of the contract remains valid where this is legally possible.
EU countries must ensure that there are effective remedies to prevent unfair terms from continuing to be used in contracts.
Organisations or individuals with a legitimate interest in protecting consumers’ rights may go to court to prevent that an unfair contract term continues to apply.
In 2019, the European Commission issued a guidance notice on the interpretation and application of Directive 93/13/EEC. This serves to present the rich case law of the Court of Justice of the European Union on this directive in a structured manner to facilitate effective application of the directive in the EU and European Economic Area countries.
Amending Directive (EU) 2019/2161 requires EU countries to introduce effective, proportionate and dissuasive penalties to punish traders who break the rules on unfair contract terms based on a set of parameters. These criteria include:
- the nature, gravity, scale and duration of the infringement;
- any action taken by the trader to mitigate or remedy the damage suffered by consumers;
- any previous infringements by the trader;
- penalties imposed on the trader for the same infringement in other EU countries in cross-border cases where information about these penalties is available through the mechanism set up by Regulation (EU) 2017/2394 (see summary).
Under the new directive, EU countries must be able to impose effective, proportionate and dissuasive penalties where, in connection with coordinated actions under Regulation (EU) 2017/2394, they identify major cross-border infringements affecting consumers in several EU countries. Fines must be able to reach 4% of a trader’s turnover, or € 2 million where information about the trader’s turnover is unavailable.
FROM WHEN DO THE DIRECTIVES APPLY?
Directive 93/13/EEC has applied since 16 April 1993 and had to become law in the EU countries by 31 December 1994.
Amending Directive (EU) 2019/2161 has to become law in the EU countries by 28 November 2021. The EU countries must apply the rules as of 28 May 2022.
For more information, see:
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, pp. 29-34)
Successive amendments to Directive 93/13/EEC have been incorporated into the original text. This consolidated version is of documentary value only.
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (OJ L 328, 18.12.2019, pp. 7-28)
Commission notice — Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ C 323, 27.9.2019, pp. 4-92)
Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee — A New Deal for Consumers (COM(2018) 183 final, 11.4.2018)
Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, pp. 1-26)
See consolidated version.
last update 10.03.2020