The Rise of a New Era of EU Consumer Contract Law. A Focus on Unfair Terms in Consumer Contracts

This thesis essentially focuses on the subject of consumer protection against unfair terms in consumer contracts. These rules stem from two pieces of legislation: firstly, the Unfair Terms Directive 93/13/EEC and secondly, the proposal for a Common European Sales Law which was put forward by the Commission 6 months ago. The thesis is divided into three sections. The first section concerns the recent developments in EU contract law and EU consumer contract law which ultimately culminated in the proposal for a Common European Sales Law. In this section, we explore the concepts of EU private law and EU contract law, including the binding and non-binding (‘soft-law’) rules that had come into existence prior to the initiation of this new phase of development. Many of these ‘soft law measures’ formed the groundwork for the Common European Sales Law. We then explore the origins of EU consumer contract law and recent trends and debates in that field of law. This section is primarily dedicated to the emergence of two projects which started out hand-in-hand: a project on a common EU contract law, on the one hand, and the review of the existing consumer aquis, on the other. In this context, we consider the subject-matter of the proposal for a Consumer Rights Directive as well as the instrument which emerged as Directive 2011/83/EU on Consumer Rights. Most importantly, this section traces and explains the development of what was to become the proposal for a Common European Sales Law – all the way from the initial notion of the creation of a ‘European Civil Code’, to the creation of the Draft Common Frame of Reference and the Expert Group’s Feasibility Study which ultimately provided the basis for the final text of the proposal for a Common European Sales Law. From then on, our focus shifts to a specific sub-category of EU consumer law and EU consumer contract law: the current rules on unfair terms in consumer contracts as provided by two distinct legislative measures: Directive 93/13/EEC on unfair terms, on the one hand, and the proposal for a Common European Sales Law, on the other. The second section focuses specifically on the rules of the minimum harmonization Directive 93/13/EEC on unfair terms in consumer contract. We begin by examining the preliminary stages that lead to the adoption of the Directive, before we turn our attention to the Directive´s scope of application ratione personae and ratione materiae. Subsequently, we examine the so-called ‘fairness test’ of Article 3(1) of the Directive, together with the requirements provided by the so-called transparency principle of Article 5. We then discuss the legal consequences that follow from the determination that a term is unfair and examine the provisions of Article 6(2) and 7 of the Directive. Finally, we examine the new rules on unfair terms in consumer contracts of Chapter 8 of the proposal for a Common European Sales Law. If adopted, this piece of legislation will be transposed into the national laws of the EU Member States as well as the EEA/EFTA States as a ‘second’, albeit optional, regime of contract law which contractual parties may choose to apply to their contract. This section is devoted to determining whether consumers ultimately will be subjecting themselves to a lower level of protection against unfair terms by choosing to conclude a contract under the Common European Sales Law, than they would ultimately enjoy by opting instead for the national rules of the consumer contract law of their respective Member States. Keywords: EU law. Common European Sales Law, Directive 93/13/EEC on unfair terms in consumer contracts, EU contract law, EU consumer contract law, Contract law, Consumer law, Unfair terms in consumer contracts, Ósanngjarnir skilmálar í neytendasamningum, Ósanngjörn ákvæði í neytendasamningum, Evrópuréttu