Keywords
Summary

Keywords

1. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 – Rule of interpretation most favourable to the consumer where there is doubt about the meaning of a term – Distinction between actions involving an individual consumer and actions for cessation

(Council Directive 93/13, Arts 5 and 7(2))

2. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 – Contract governed by the law of a third country and having a close connection with the territory of the Member States – Meaning of ‘close connection’ – Criteria referred to in Article 5(1) of the Convention on the law applicable to contractual obligations – Exclusion

(Rome Convention of 19 June 1980, Art. 5; Council Directive 93/13, Art. 6(2))

Summary

1. The proviso in the third sentence of Article 5 of Directive 93/13 on unfair terms in consumer contracts that the rule of interpretation most favourable to the consumer is to prevail where there is doubt about the meaning of a term is not to apply in the context of actions for cessation, referred to in Article 7(2) of the Directive, is a binding legislative provision which confers rights on consumers and assists in determining the result which the directive seeks to achieve.

The distinction thus made concerning the applicable rule of interpretation, as between actions involving an individual consumer and actions for cessation which involve persons or organisations representative of the collective interest of consumers may be accounted for by the different aims pursued by those actions. In the former case, the courts or competent bodies are required to make an assessment in concreto of the unfair character of a term contained in a contract which has already been concluded, while in the latter case it is their task to assess in abstracto the unfair character of a term which may be incorporated into contracts which have not yet been concluded. In the former case, an interpretation favourable to the individual consumer concerned benefits him or her immediately. By contrast, in the latter case, in order to obtain, by way of prevention, the most favourable result for consumers as a whole, it is not necessary, where there is doubt, to interpret the term in a manner favourable to them. Accordingly, an objective interpretation makes it possible to prohibit more frequently the use of an unintelligible or ambiguous term, which results in wider consumer protection.

(see paras 16-17)

2. Article 6(2) of Directive 93/13 on unfair terms in consumer contracts, which provides that Member States are to take the necessary measures to ensure that the consumer does not lose the protection granted by that 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, must be interpreted as meaning that the deliberately vague term ‘close connection’, which seeks to make it possible to take account of various ties depending on the circumstances of the case, may be given concrete effect by means of presumptions. On the other hand, it cannot be circumscribed by a combination of predetermined criteria for ties such as the cumulative conditions as to residence of the consumer and conclusion of the contract referred to in Article 5 of the Convention on the law applicable to contractual obligations of 19 June 1980.

(see paras 32-33)