Abusive clauses
– application of the provisions of Directive 93/13
in Poland and in selected countries of the European Union
(Germany, Great Britain, France, the Czech Republic, Slovakia and Hungary)
The study with its summary
Dr Maciej Skory
Warsaw 2007
The following publication was prepared for the Office of Competition and
Consumer Protection within the Transition Facility Project No. 2004/016829.02.04 ”System of Consumer Protection”.
ISBN 978-83-60632-11-6
Office of Competition and Consumer Protection
Plac Powstańców Warszawy 1
00-950 Warsaw
Ph.: (+48 22) 22 55 60 800
www.uokik.gov.pl
Warsaw 2007
CONTENTS
Introduction ................................................................................................. 3
Chapter I. Characteristics of abusive clauses in the European
and Polish legal system.............................................................................. 8
1. Development of the consumer protection law against unfair contract
terms............................................................................................................................ 8
2.
The definition and place of abusive clauses in Polish legal system........... 9
2.1 General characteristics of regulations............................................................ 9
2.2 The term of an abusive contractual clause methods of protection against
negative consequences of applying abusive clauses.......................................... 11
3. The importance of the jurisdiction of the Court for Competition and
Consumer Protection for the process of eliminating illegal contract provisions
15
Chapter II. Regulation of illegal contract provisions in selected
countries of the European Union..............................................................16
1. Germany........................................................................................................... 16
1.1. Sources of law.................................................................................................. 16
1.2. Analysis of the transposition of the Directive 93/13 to the German legal
system........................................................................................................................ 19
1.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 26
1.4. Comparing the German and Polish regulations........................................ 32
2. England............................................................................................................. 33
2.1. Sources of law.................................................................................................. 33
2.2. Analysis of the transposition of the Directive 93/13 to the British legal
system........................................................................................................................ 34
2.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 36
2.4. Comparing the British and Polish transposition........................................ 42
3. France................................................................................................................ 43
3.1. Sources of law................................................................................................. 43
3.2. Analysis of the transposition of the Directive 93/13 to the French legal
system........................................................................................................................ 44
3.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 49
3.4. Comparing the French and Polish transposition....................................... 56
4. The Czech Republic........................................................................................ 58
4.1. Sources of law................................................................................................. 58
4.2. Analysis of the transposition of the Directive 93/13 to the Czech legal
system........................................................................................................................ 59
4.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 64
4.4. Comparing the Czech and Polish transposition......................................... 65
5. Slovakia ........................................................................................................... 65
5.1. Sources of law................................................................................................. 65
5.2. Analysis of the transposition of the Directive 93/13 to the Slovak legal
system........................................................................................................................ 67
5.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 72
5.4. Comparing the Slovak and Polish transposition....................................... 76
6. Hungary............................................................................................................74
6.1. Sources of law..................................................................................................74
6.2. Analysis of the transposition of the Directive 93/13 to the Hungarian legal
system........................................................................................................................ 76
6.3. Jurisdiction concerning consumer protection and finding the provisions
of standard contracts illegal................................................................................... 84
6.4. Comparing the Hungarian and Polish transposition................................ 92
Chapter III. Assessment of solutions regarding abusive clauses in
selected countries..................................................................................... 94
1. The European consumer among different legal regimes concerning
abusive clauses......................................................................................................... 94
2. Similarities and differences in the legislations of selected countries
– an attempt to distinguish basic models of the transposition of the Directive
93/13............................................................................................................................ 96
3. Polish consumer in the face of abusive clauses in EU countries.............. 97
4. Final conclusions and summary of the main points of the study........... 99
Summary of the study............................................................................. 103
Introduction
Introduction
The issue of unfair terms in consumer contracts, also called abusive clauses,
has been the subject of particular interest of consumer protection legislation
for many years. Since the regulations on unfair clauses concern all types of
consumer contracts, it could be said that - as opposed to regulations relating only
to sales contracts, contracts for tourist services, distance contracts, concluded
outside the business premises, etc. - this legislation is of the most universal
nature in the entire field of consumer protection. Considering the above, the
interest that the legislator, the doctrine and, in particular, the law practitioners
have in this matter is well-justified. Still, there are no comprehensive studies
covering the issue. A judgement recognising a specific clause as abusive
(or not) usually arouses great interest, but also great controversy. Further
consequences of the decision are also disputable, in particular in the context
of the so-called extended effectiveness of the judgments of the Court of
Competition and Consumer Protection, which means that the given standard
contract can no longer be used in B2C transactions. Unfortunately, the
available studies concerning the abovementioned issues are usually based on
the Polish national regulations and the situation in Poland and they rarely
consider the wider European context of the case. Therefore, the development
of a study presenting the issue of abusive clauses in the whole context of other
EU countries’ legislation seems justified. Hopefully, the study will fill in the
existing gap. It is worth underlying that the aim of the study is not to present
the regulations in different countries from the strictly normative point of view,
because this type of work, though interesting, would be less valuable from the
practical perspective. Thus, according to the author’s initial idea, the study
has a few objectives, the main one being to present both the normative issues
and certain practical aspects of the regulations concerning abusive clauses,
including selected examples of case law.
To ensure that the study is really synoptic, the analysis covers three
countries which have been functioning in the European structures for years:
Great Britain, Germany and France and three countries which, just as Poland,
have accessed the EU only recently: Hungary, Slovakia and the Czech Republic.
The choice of these particular Western countries is not accidental. They
represent three fundamentally different and at the same time exemplary legal
systems. The aim of the study is to present the broadest possible spectrum
of regulations. The study also attempts at defining the models of protecting
consumers against abusive clauses. All the studied regulations are based
on the Council Directive 13/93 of 5 April 1993 on unfair terms in consumer
contracts, still the way of their transposition was different in each country
Introduction
and therefore it is necessary to present not only the differences but also certain
common tendencies.
As mentioned above, the study is to present not only the juridical issues,
though the author paid particular attention to this aspect, but it is also to
show certain issues of practical nature. Therefore, the analysis of the legal
provisions, including their exact quotations, is complemented by selected
examples of case law, which indirectly show the so-called “law in action”.
The study tries also to assess what possibilities there are for a consumer who
initiates the fight against abusive clauses not only within the territory of his
or her country but in other EU Member States. Thus, the practical objectives
of the study were achieved, on one hand by presenting particular case studies
exemplifying given legal solutions and, on the other hand, by providing the
readers with the information on the possibilities and limitations in obtaining
the knowledge necessary to assess the nature of a given clause in different
countries and obtaining the assistance necessary in this respect.
The study covers the regulations of six countries, the Community
regulations and the Polish regulations. However, the study is addressed to
the Polish reader. Therefore, the first part contains a detailed description
of the Polish national solutions, which should be easy to understand for
a person familiar with the Polish context. On the basis of that, the regulations
of the other countries and their case law are described. Therefore, the Polish
legislation is the point of reference, although while reviewing the different
normative solutions, the author mainly referred to the Directive 13/93 since it
constituted the common ground for the legislators all of the studied countries.
Consequently, it was possible to avoid excessive theorizing and comparing
“everyone to everyone” and to make the study more condense and reader
friendly. This also makes it possible even for persons who do not deal with
legal analysis on everyday basis to understand the study and draw conclusions
on their own.
The study could be said to be addressed to a very wide circle of readers
and “everyone can find something useful there”. On one hand, the carefully
quoted regulations of individual countries constitute a great study material
for further works and analyses. On the other hand, the relatively light, though
precise, language makes it easy for persons who do not deal with analysis
of legal issues in everyday life to learn about abusive clauses. Enriching the
study with selected examples of case law is an additional asset which should
satisfy not only theoreticians but also practitioners and consumers per se.
The court judgements may not only be used for the purposes of a detailed
analysis but, above all, they give a very clear picture of the actual state of play
and moreover, they allow the people who are less familiar with the issues in
Introduction
question to acquaint themselves and understand the subject matter (it is not
by accident that case studies are so popular nowadays).
Overall, the study is of universal nature, it constitutes both an interesting
study material and an accessible guide to various regulations related to abusive
clauses in the most characteristic European legal systems. Hopefully, it proves
useful to those interested in the topic.
Characteristics of abusive clauses in the European and Polish legal system
CHAPTER I
Characteristics of abusive clauses in the European and Polish legal
system
1.
Development of the consumer protection law against unfair contract
terms
At the beginning of the 20th century selling goods and providing services
to final recipients was still subject to regulations of general application which
were suitable for specific relations. It was characteristic of the social and
economic development in the past centuries that everyone was simultaneously
a consumer and – to a certain extent – an entrepreneur. Changes caused by
a rapid development of civilization and the possibility of mass production
which emerged at the same time have lead to a distinction of a particular
category of people whose economic role basically came down to using the
products of other participants of trade. Legal rules which are jointly referred
to as consumer protection law were created for this category of entities. It is
assumed that consumer rights were created to protect less qualified participants
of trade, but they remain a specific „by-product” of the competition law.
The need to protect consumers was noticed in Europe somewhat later than
in the United States, which is considered to be the cradle of the consumer
protection law. In the Treaty establishing the European Economic Community
signed in Rome on 25 March 1957, also called the Treaty of Rome, the problem
of consumer protection was not mentioned at all. On the European ground,
the OECD report on consumer policy issued in 1972 was a crucial legal
document. Programming documents of the Council of Europe of 15 May 1973
on the need of establishing consumer protection, i.e. Resolution No. 543/1973
– the Charter of Consumer Protection and the recommendation 705/1973 on
consumer protection were also of great importance. The critical moment
however, took place on the European Summit in Paris – the meeting of the
Heads of State and Government in 1972. One of the results of this meeting was
establishing an office by the European Commission, whose objective was to
control and indicate risks concerning consumer and environment protection.
The „First common consumer policy and education programme” was created
in 1975 and was introduced by the Council Resolution of 14 May 1975 and
constituted the first significant regulation concerning consumer protection.
E. Łętowska, Europejskie prawo umów konsumenckich, Warsaw 2004, page 7.
Texts of the sources of the European law are published in: E. Wojtaszek-Mik, C. Mik, Traktaty Europejskie, Kraków 2000
and in: Prawo Wspólnot Europejskich. Dokumenty i orzecznictwo, (edit.) W. Czapliński, R. Ostrihansky, A. Wyrozumska,
Publishing House Scholar, Warsaw 1994.
See E. von Hippel, Verbraucherschutz, Tübingen 1979.
After E. Łętowska, Prawo umów konsumenckich, Warsaw 2002, page 3.
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
The basic tool of implementing ideas and postulates adopted in the Union
are directives whose aim is to standardize regulations. Due to their socalled minimum character, they allow selected Member States to introduce
more restrictive solutions than those which are stipulated in particular
normalizations (so-called opting out). These solutions must however remain
compliant with TEU (Article 30) and – according to Article 100a(4) – they
must be approved by the European Commission. Taking such meaning of
directives into consideration, it is not difficult to predict that regulations
based on them vary considerably in selected Member States. Every country
implements the policy and objectives indicated in a directive in its own way.
This is one of the reasons why it is very important to indicate differences in
particular regulations, to verify them and to determine which ones are the
most effective and conform to the so-called European spirit. This study serves
i.e. this purpose.
2.
The definition and place of abusive clauses in the Polish
legal system
2.1. General characteristics of regulations
According to the provisions of Article 76 of the Constitution of the Republic
of Poland of 2 April 1997, ‘Public authorities shall protect consumers, customers,
hirers or lessees against activities threatening their health, privacy and safety,
as well as against dishonest market practices. The scope of such protection
shall be specified by statute’. The above provision constitutes a direct basis for
taking legislative and transposition actions concerning consumer protection
in the Polish legal system. Article 8(2) of the Constitution, which stipulates
that the provisions of the Constitution shall be applied directly, unless the
Constitution provides otherwise, allows to propose a thesis that Article 76
of the Constitution constitutes one of the legal sources of the regulation
concerning illegal contract terms.
The scope of consumer protection stipulated in the Constitution of
the Republic of Poland was determined in the Civil Code Act of 23 April 1964
(Journal of Laws 64.16.93 amended). A basic regulation of standard contracts
was included in Articles 384-385 and the transposition of the Directive 93/13
was performed in particular in Articles 3851-3853. The current content of
the above provisions results not only from changes in legislation, but it also
shows structural and cultural changes which can be observed in Poland.
An increasing awareness of the need for legal protection of individuals against
postcommunist tendencies and the need to arrange matters so far neglected
Characteristics of abusive clauses in the European and Polish legal system
by the state of socialized economy have led to a thorough change in Articles
384 and 385 of the Civil Code of the time.
These provisions were amended several times, but for the purposes of this
study as the most significant should be regarded the amendment introduced
by the act of 2 March 2000, concerning the protection of certain consumer
rights and on the liability for damage caused by a dangerous product (Journal
of Laws 00.22.271), which came into force on 1 July 2000. Articles 18, 19 and 20
are of particular importance for the discussed institution of abusive clauses.
The first one introduces changes to the Civil Code in the form of defining
the term „consumer” in Article 384 § 3, adding Article 3841 concerning the
regulation of binding with a standard contract issued during the duration of
a durable contractual relationship (contents from than existing Article 385 § 3
of the Civil Code were moved), specifying premises for abusiveness in Article
3851, determining indications that ought to be looked for while verifying those
premises in Article 3852 and establishing the so-called statutory list of abusive
clauses in Article 3853. Subsequent Article 19 of the Act distinguished a different
kind of proceedings in cases concerning acknowledging of standard contract
provisions as illegal in the Code of Civil Proceedings. In Section 3 of Chapter
IVa Title VII Book One Part One of the Code of Civil Proceedings it adds 15
Articles from 47936 to 47945, which describe the rules of proceedings in frames
of the so-called abstractive control of standard contracts. Finally, the last of
the discussed provisions of the Act adds Article 138b to the Code of Offences,
which introduces penalty in the form of fine as a result of noncompliance with
the prohibition of applying provisions considered illegal. This amendment,
within the scope of its regulation, made an transposition i.e. of the Directive
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (O.J. EC L 95
of 21 April 1993). However, there are some differences between the Directive
93/13 and the Civil Code. According to the regulations of the Polish law,
all entrepreneurs entering into contracts with consumers are addressees of
standards concerning consumer protection. The Civil Code contains no subject
differentiation of entrepreneurs, e.g. in relation to entrepreneurs providing
financial services. The Directive approaches „suppliers of financial services”
who are mentioned in point 2 of the Annex to the Directive in a different way
than „suppliers” or „sellers” defined in Article 2 of the Directive. Moreover,
Polish regulations do not allow to exclude labour law, family law, law of
succession and company law from the scope of regulation of standard contracts.
It results from the fact that the Polish Act applies only to relationships between
entrepreneurs and consumers. The Directive, contrary to the Polish regulation,
contains also an exclusion of provisions which reflect binding internal rules
(statutory or transposition ones) and international agreements (provisions
Only later was a chapter concerning the conclusion of distance financial contracts added to the Act of 2 March.
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
or rules of international conventions), in which Poland or the Community is
a Party. This provision confirms the correctness of establishing regulations in
every Member State, at the same time excluding the possibility of initiating
legal proceedings concerning finding illegal the provisions of a standard
contract reflecting Polish or international regulations. The Polish legislator
did not introduce issues concerning conflicts of laws mentioned in Article 6(2)
of the Directive to Polish law. According to the provisions of this paragraph,
a 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
a contract, if the latter is in close connection with the territory of the Member
States. In spite of the mentioned differences between the Directive 93/13 and
the Civil Code, the transposition has to be assessed positively. A great number
of articles of the Directive have been implemented only with minor changes,
which makes it possible to state that the basic regulatory act for abusive
clauses in Poland conforms to European requirements.
At the end of the description of the regulation of the discussed institution in
the Polish legal system, the above group of regulations ought to be completed
with those ones which are either transposition regulations in relation to
main regulations, or have an ancillary character and control only a minor
area of the scope of illegal contract clauses. What is meant here above all is
the Regulation of the Council of Ministers of 19 July 2000 on the Register
of Abusive Clauses (Journal of Laws 00.62.723) kept by the President of the
Office of Competition and Consumer Protection on the basis of valid-in-law
court verdicts stating the abusiveness of standard contract terms.
2.2. The term of an abusive contractual clause and methods of protection
against negative consequences of applying abusive clauses
The term „illegal contract provision” was mentioned in Article 3851 § 1
of the Civil Code. It stipulates that ‘provisions of contracts with consumers
which are not individually agreed are non-binding, if they formulate consumer
rights and obligations against good practice and amount to gross violation of
consumer interest (abusive clauses)’. At the same, it is stated that ‘this shall
not apply to conditions defining the main services of the parties, including
prices or consideration, if they have been determined in a clear way’. What is
interesting, the Polish legislation uses the term “abusive”, which, contrary to
foreign regulations, does not conform to the functions and meaning of abusive
clauses. The word stems from abuse – (offend, infringe) and has little to do
with the term „illegal”. It is also difficult to find a relation between „illegal”
and „unfair”. The latter is used in European regulations interchangeably with
Characteristics of abusive clauses in the European and Polish legal system
„abusive” (unfair contract terms).
In order to explain the nature of the term „abusive contractual clauses”,
it is necessary to verify premises necessary for stating that a given clause
is abusive and to determine the consequences of such statement. According
to the provisions of Article 3851 § 1 of the Civil Code, the provisions of
contracts entered into with consumers can be considered an abusive clause,
if the following criteria have been met: they formulate consumer rights and
obligations against good practice, amount to gross violation of consumer
interest and have not been individually agreed with a consumer. Formulating
consumer rights and obligations against good practice and gross violation
of consumer interest are a matter of assessment, which makes it difficult to
state whether such infringement occurred while entering into such contract
and whether such contractual clause can as a result be considered an abusive
contract term.
Reference to good practice is a reference to judgements justifying moral
rules having their source in values commonly accepted and objectively
perceived. Stating whether a given provision of a contract has features of an
abusive clause is not easy, due to the contents of the general clause of „good
practice”. It is necessary to rely on guidelines included in Article 3852 of the
Civil Code, which stipulates that an assessment of a contractual provision’s
compliance with good practice is made according to the condition while
signing the contract, considering its contents, the circumstances of signing
it, as well as other contracts related to the contract containing the provision
being the subject of assessment.
The second factor which decides whether a given contractual provision
can be found abusive is the clause of „gross violation of consumer interest”.
This clause has to be understood in a broad sense, considering, apart from
economic interest, also problems concerning organizational inconvenience,
loss of time, dishonest treatment, misleading and infringing consumers’
privacy.
The term „not individually agreed” means that consumers do not have actual
impact on the contents of a contract when they are signing it. In other words,
they may either sign a contract in a form imposed by entrepreneurs or they
may not sign it at all. It also concerns only particular contractual provisions, if
other ones allowed negotiating. The issue of individual agreement is assessed
from the point of view of a consumer’s impact on the content of a contract.
The burden of proof cocerning individual reconcilements belongs to those
who make reference to such circumstance (Article 3851 § 4 of the Civil Code).
In principle it is an entrepreneur who tries to prove that consumers have been
W. Popiołek (in:) Kodeks cywilny. Komentarz, part I (edited by K. Pietrzykowski), Warsaw 2002, page 804.
10
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
bound with the provisions included in a contract or in a standard. It ought to
be emphasized at this point that the legislator, introducing an exception from
finding contractual provisions illegal in Article 3851 § 2 of the Civil Code, even
if they formulate consumer rights and obligations against good practice and
amount to gross violation of consumer interest, has encouraged to assume
that relevant elements of a contract are in principle individually agreed by the
parties. This shall mean that such relevant provisions cannot be considered
an abusive clause, if they have been explicitly and clearly formulated and as
a result they have been individually agreed.
The definition of an „illegal contract provision” determined in 3851 § 1
of the Civil Code has been completed in Article 3853 § 1 of the Civil Code
with a list of 23 specific clauses which in case of doubt are considered illegal.
The basis for creating this list was a list of illegal clauses enclosed in the
Annex to the Directive 93/13. This list however is not complete. It is only
an indication, a sample group of illegal contract provisions occurring most
often in practice.
Passing on to the description of methods of protection against negative
consequences of applying abusive clauses, it ought to be emphasized at the
beginning that the main reason for introducing measures for consumer
protection was the necessity to implement Article 7 of the Directive. According
to paragraph 1 of this regulation: ‘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’. Consequently, the scope of means
to eliminate the consequences of illegal contractual provisions in the Polish
regulation includes civil remedies among which there are: (i) individual
and (ii) abstract protection, (iii) administrative and (iv) punitive measures.
A basic sanction aiming at a direct protection of consumer interest against the
consequences of unfair contractual provisions is Article 3851 § 1 of the Civil
Code, stating that a consumer is not bound by a specific contract provision.
According to the abovementioned regulation, consumers “are not bound”
by illegal contract provisions contained in consumer contracts. The fact that
a consumer is not bound by a given provision means that it is affected by one
of civil consequences of the defectiveness of a legal transaction – sanction
of nullity. It is important that legal construction of abusive clauses allows to
maintain a legal relation and to affect with nullity only a defective provision,
which is stipulated in Article 3851 § 2 of the Civil Code. Apart from the
K. Zagrobelny (in:) Kodeks cywilny. Komentarz, part I (edited by E. Gniewek), Warsaw 2004, page 909.
K. Zagrobelny, op. cit., page 914.
As results from the above and shall be the subject of further analysis, the European legislator did not specify those
means. Preceding the coming analysis it ought to be stated that, against all conviction, the functioning of Register of
Abusive Clauses and the so-called extended efficiency of an entry to this Register are not required or even suggested by
the European Union.
11
Characteristics of abusive clauses in the European and Polish legal system
abovementioned legally authorized four groups of means of protection
against abusive clauses, it is worth mentioning extra-legal ways to counteract
abusive clauses. Among those there are mainly educational actions of different
kinds making customers aware of their rights, actions popularizing the
issue of abusive clauses, including the publishing of information leaflets by
authorized bodies, taking up mediation in disputes between entrepreneurs
and consumers, as well as similar actions in the category of consumer
policy10.
Individual protection takes place on the basis of binding regulations of the
civil law. Consumers may rely on substantial consequences of the provisions
of 3851 of the Civil Code and they may choose to act passively or actively11.
Suits for considering a standard agreement illegal are part of the proceedings
in frames of the so-called abstractive control of standard contracts, which
means they are carried out separately from specific contracts. This is a general
control whose subject is a standard offered by an entrepreneur to a customer as
the contents of a contract which they will sign in the future. The competence
to verify the provisions of a standard contract and to find them illegal
according to Article 47936 of the Code of Civil Proceedings was granted to
the District Court in Warsaw – the Court of Competition and Consumer
Protection. In case of admitting legal action, according to Article 47942 § 1 of
the Code of Civil Proceedings, the Court quotes in its verdict the contents
of provisions of a standard contract which are found illegal and prohibits
applying them. Moreover, on the basis of Article 47945 of the Code of Civil
Proceedings, a copy of a valid verdict considering legal action is sent by the
Court to the President of the Office of Competition and Consumer Protection,
who keeps the Register of Abusive Clauses. Under a regulation of the Council
of Ministers, this Register is publicly available. On entering a standard
contract’s provision found illegal to the Register, a valid verdict has an effect
also on third parties12. Moreover, this verdict is published in the Court and
Economic Monitor. Such control is of special importance for eliminating the
provisions which are disadvantageous for consumers from economic activity
and it also has a big role in making entrepreneurs aware of practices and
specific provisions which harm consumers.
Introducing administrative and legal means of protection against contract
provisions which are detrimental for consumers was carried out by adopting
a resolution of 5 July 2002 on amendment to the Act on consumer and
competition protection, the Act – Code of Civil Proceedings and the Act
Such actions are indicated by the new President of the Office of Competition and Consumer Protection – Marek
Niechciał as the most advisable ones to be applied in statement for Gazeta Prawna of 18.04.2007.
11
More on the subject can be found in M. Skory, Klauzule abuzywne w polskim prawie ochrony konsumenta, Zakamycze
2005.
12
Article 47943 of the Code of Civil Proceedings: A valid sentence has an effect on third parties from the moment of entering
a model contract’s provision found illegal to the register(...).
10
12
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
on combating unfair competition13, stipulating a range of severe sanctions,
including financial ones. Article 138b of the Act of 20 May 1971 – the Code
of Offences also stipulates specific sanctions for the breach of provisions
concerning abusive clauses.
The above shows that Polish regulations contain a scope of legal measures
concerning consumer protection against disadvantageous contractual
provisions both in the civil and in the administrative and punitive sphere. The
problem is however, that the mere existence of those measures does not make
them effective. The practice shows that the best mechanisms of protection are
material and direct sanctions mentioned in Article 3851 of the Civil Code.
3.
The importance of the jurisdiction of the Court of Competition
and Consumer Protection for the process of eliminating illegal
contractual provisions
As a result of a positive verdict in the case considered by the Court of
Competition and Consumer Protection and of issuing a judgement considering
the legal suit, a plaintiff may effectively request that a defendant ceases to
apply the questioned provision. According to Article 47942 § 1 of the Code of
Civil Proceedings, the Court quotes in its verdict the contents of provisions of
a standard contract which are found illegal and prohibits applying them.
According to Article 47943 of the Code of Civil Proceedings, a valid judgement
has an effect on third parties from the moment of entering a standard contract’s
provision found illegal to the Register. The interpretation of this regulation
allows to draw a conclusion that a judgement stating an illegal character of
a standard contract’s provision can be applicable not only in an individual case,
but in all similar cases. Doubts occurring in literature, as well as in jurisdiction
concern mainly the fact that normative effectiveness of a judgement for third
parties can be explained in different ways. In the justification of the resolution
the Supreme Court adopted on 13 July 200614 the Court distinguished three
groups of views concerning the effectiveness of judgements and subsequently
Replaced by the Act of 16 February 2007 on consumer and competition protection from 21 April 2007 (Journal
of Laws 50, item 33).
14
Resolution of the Supreme Court of 13 July 2006, No. III SZP 3/06, after a research on a case in the Labour, social insurance and public affairs house concerning a legal issue submitted by the decision of the Court of Appeal on 15 February
2006: Can applying a model contract by an entrepreneur which contains a provision of an identical content as a provision considered
illegal by a judgement of the Court of Competition and Consumer Protection issued for another entrepreneur and entered into the
Register described in Article 47945 §2 of the Code of Civil Proceedings be considered practice infringing group interest of consumers which is described in Article 23(a)(2) of the Act of 15 December 2000 on competition and consumer protection (codified version:
Journal of Laws of 20903, No. 86, item 804 amended) of the following contents: ‘Applying provisions of sample contracts
of an identical content as provisions considered illegal by a judgement of a District Court in Warsaw – the Court of
Competition and Consumer Protection and entered into the Register described in Article 47945 §2 of the Code of Civil
Proceedings can be considered practice infringing group interest of consumers when applied to another entrepreneur
(Article 23(a)(2) of the Act of 15 December 2000 on competition and consumer protection, codified version: Journal of
Laws of 20903, No. 86, item 804 amended)’.
13
13
Regulation of illegal contract provisions in selected countries of the European Union
pointed those which it considered to be correct. The Supreme Court adopted
a position saying that when the Court of Competition and Consumer Protection
finds a certain clause illegal as a result of abstract control carried out and
such clause is entered into the Register mentioned in Article 47945 § 2 of the
Code of Civil Proceedings, than every entrepreneur who introduced minor
amendments to such clauses, being e.g. a change in word order or a change of
used words, carries out practices infringing the group interest of consumers,
if such amendments do not change the substance of such clause15.
Having regard to the above, the case law in Poland, which is later
published in the Register of Abusive Clauses for the purpose of eliminating
illegal contractual provisions from consumer trade, is of great importance16.
All present and potential contractors of those who suggest a given standard
can become familiar with the content of an illegal standard provision. Thanks
to that they gain knowledge which enables them to question contractual
provisions which have their counterparts in the Register. The informational
function of the Register helps to eliminate one of the biggest consumers’
weaknesses, which is their dispersion (there is a chance that information about
a judgement will get to clients of an entity who are located all over the country),
as well as lack of knowledge about rights granted to them and about illegal
actions of entrepreneurs17. It ought to be remembered however, that the main
purpose of the Register is to make entrepreneurs aware of an illegal character
of provisions applied in standard contracts, which makes it a significant factor
shaping future contents of contracts signed with consumers.
CHAPTER II
Regulation of illegal contract provisions in selected countries of the
European Union
1
Germany
1.1. Sources of law
The issue of applying illegal contractual clauses in Germany was
regulated in the Act of 9 December 1976 containing a regulation concerning
general contract terms (Gesetz zur Regelung des Rechts der Allgemeinen
Geschäftsbedingungen – AGB-Gesetz [hereinafter: AGBG])18. Protection
Resolution of the Supreme Court of 13 July 2006, No. III SZP 3/06... thesis 17 of the justification.
This issue is solved differently in other countries, which shall be mentioned in further parts of the study.
17
M. Skory Klauzule abuzywne w polskim prawie ochrony konsumenta, Zakamycze 2005, page 319.
18
Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen Gesetz vom 9.12.1976 (BGBl. I S. 3317)
Aufgehoben durch Gesetz vom 26.11.2001 (BGBl. I S. 3138) m.W.v. 1.1.2002.
15
16
14
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
against applying illegal provisions concerned than (and it still concerns) not
only consumers, but also all natural or legal persons who enter into contracts
relying on standard contracts. Therefore, the protection applies also in case
of contracts in which the parties are only consumers or only entrepreneurs.
It can be assumed that the scope of protection against applying abusive
clauses stipulated in German legislation is bigger than the scope of protection
stipulated in the Directive. It is worth emphasizing that before the Directive
was implemented, it was possible, according to the provisions of the German
law, to assess contract clauses applied in a standard contract prepared by one of
the parties. Regulations concerning general contract provisions (AGBG) did not
apply in case of clauses formulated for the purposes of only one contract (they
were not included in standard contracts), as well as in case of clauses applied
by third parties, i.a. notaries, agents etc. A list of so-called “suspicious clauses”,
i.e. clauses whose importance depends on a situation, included in Article 10
AGBG19 (currently Article 308 of the German Civil Code20 (hereinafter: BGB),
as well as the so-called “black list” of invalid clauses contained in Article 11
of AGBG21 (currently Article 309 of BGB) served and they still serve mainly as
§ 10 Klauselverbote mit Wertungsmöglichkeit
In Allgemeinen Geschäftsbedingungen ist insbesondere unwirksam
1. (Annahme- und Leistungsfrist) eine Bestimmung, durch die sich der Verwender unangemessen lange oder nicht
hinreichend bestimmte Fristen für die Annahme oder Ablehnung eines Angebots oder die Erbringung einer Leistung
vorbehält; ausgenommen hiervon ist der Vorbehalt, erst nach Ablauf der Widerrufs- oder Rückgabefrist nach § 361a Abs.
1, § 361b Abs. 2 des Bürgerlichen Gesetzbuchs zu leisten;
2. (Nachfrist) eine Bestimmung, durch die sich der Verwender für die von ihm zu bewirkende Leistung entgegen § 326
Abs. 1 des Bürgerlichen Gesetzbuchs eine unangemessen lange oder nicht hinreichend bestimmte Nachfrist vorbehält;
3. (Rücktrittsvorbehalt) die Vereinbarung eines Rechts des Verwenders, sich ohne sachlich gerechtfertigten und im
Vertrag angegebenen Grund von seiner Leistungspflicht zu lösen; dies gilt nicht für Dauerschuldverhältnisse;
4. (Änderungsvorbehalt) die Vereinbarung eines Rechts des Verwenders, die versprochene Leistung zu ändern oder
von ihr abzuweichen, wenn nicht die Vereinbarung der Änderung oder Abweichung unter Berücksichtigung der Interessen des Verwenders für den anderen Vertragsteil zumutbar ist;
5. (Fingierte Erklärungen) eine Bestimmung, wonach eine Erklärung des Vertragspartners des Verwenders bei Vornahme oder Unterlassung einer bestimmten Handlung als von ihm abgegeben oder nicht abgegeben gilt, es sei denn,
daß a) dem Vertragspartner eine angemessene Frist zur Abgabe einer ausdrücklichen Erklärung eingeräumt ist und b)
der Verwender sich verpflichtet, den Vertragspartner bei Beginn der Frist auf die vorgesehene Bedeutung seines Verhaltens besonders hinzuweisen;
6. (Fiktion des Zugangs) eine Bestimmung, die vorsieht, daß eine Erklärung des Verwenders von besonderer Bedeutung
dem anderen Vertragsteil als zugegangen gilt;
7. (Abwicklung von Verträgen) eine Bestimmung, nach der der Verwender für den Fall, daß eine Vertragspartei vom
Vertrage zurücktritt oder den Vertrag kündigt, a) eine unangemessen hohe Vergütung für die Nutzung oder den Gebrauch einer Sache oder eines Rechts oder für erbrachte Leistungen oder b) einen unangemessen hohen Ersatz von
Aufwendungen verlangen kann;
8. (Nichtverfügbarkeit der Leistung) die nach Nummer 3 zulässige Vereinbarung eines Vorbehalts des Verwenders,
sich von der Verpflichtung zur Erfüllung des Vertrags bei Nichtverfügbarkeit der Leistung zu lösen, wenn sich der
Verwender nicht verpflichtet, a) den Vertragspartner unverzüglich über die Nichtverfügbarkeit zu informieren und b)
Gegenleistungen des Vertragspartners unverzüglich zu erstatten.
20
Bürgerliches Gesetzbuch vom 18. August 1896 in der Fassung der Bekantmachung von 2. Januar 2002 ( BGBI. I S. 42,
ber. S. 2909, 2003 S. 738 ). Zuletzt geändert durch Gesetz vom. 22. December 2006 ( BGBI. I S. 3416 ) m. W. v. 31 December
2006.
21
§ 11 Klauselverbote ohne Wertungsmöglichkeit
In Allgemeinen Geschäftsbedingungen ist unwirksam
1. (Kurzfristige Preiserhöhungen) eine Bestimmung, welche die Erhöhung des Entgelts für Waren oder Leistungen
vorsieht, die innerhalb von vier Monaten nach Vertragsabschluß geliefert oder erbracht werden sollen; dies gilt nicht
bei Waren oder Leistungen, die im Rahmen von Dauerschuldverhältnissen geliefert oder erbracht werden;
2. (Leistungsverweigerungsrechte) eine Bestimmung, durch die a) das Leistungsverweigerungsrecht, das dem
Vertragspartner des Verwenders nach § 320 des Bürgerlichen Gesetzbuchs zusteht, ausgeschlossen oder eingeschränkt
wird, oder b) ein dem Vertragspartner des Verwenders zustehendes Zurückbehaltungsrecht, soweit es auf demsel19
15
Regulation of illegal contract provisions in selected countries of the European Union
ben Vertragsverhältnis beruht, ausgeschlossen oder eingeschränkt, insbesondere von der Anerkennung von Mängeln
durch den Verwender abhängig gemacht wird;
3. (Aufrechnungsverbot) eine Bestimmung, durch die dem Vertragspartner des Verwenders die Befugnis genommen
wird, mit einer unbestrittenen oder rechtskräftig festgestellten Forderung aufzurechnen;
4. (Mahnung, Fristsetzung) eine Bestimmung, durch die der Verwender von der gesetzlichen Obliegenheit freigestellt wird, den anderen Vertragsteil zu mahnen oder ihm eine Nachfrist zu setzen;
5. (Pauschalierung von Schadensersatzansprüchen) die Vereinbarung eines pauschalierten Anspruchs des Verwenders auf Schadensersatz oder Ersatz einer Wertminderung, wenn a) die Pauschale den in den geregelten Fällen nach
dem gewöhnlichen Lauf der Dinge zu erwartenden Schaden oder die gewöhnlich eintretende Wertminderung übersteigt, oder b) dem anderen Vertragsteil der Nachweis abgeschnitten wird, ein Schaden oder eine Wertminderung sei
überhaupt nicht entstanden oder wesentlich niedriger als die Pauschale;
6. (Vertragsstrafe) eine Bestimmung, durch die dem Verwender für den Fall der Nichtabnahme oder verspäteten Abnahme der Leistung, des Zahlungsverzugs oder für den Fall, daß der andere Vertragsteil sich vom Vertrag löst, Zahlung
einer Vertragsstrafe versprochen wird;
7. (Haftung bei grobem Verschulden) ein Ausschluß oder eine Begrenzung der Haftung für einen Schaden, der auf einer grob fahrlässigen Vertragsverletzung des Verwenders oder auf einer vorsätzlichen oder grob fahrlässigen Vertragsverletzung eines gesetzlichen Vertreters oder Erfüllungsgehilfen des Verwenders beruht; dies gilt auch für Schäden
aus der Verletzung von Pflichten bei den Vertragsverhandlungen;
8. (Verzug, Unmöglichkeit) eine Bestimmung, durch die für den Fall des Leistungsverzugs des Verwenders oder
der von ihm zu vertretenden Unmöglichkeit der Leistung a) das Recht des anderen Vertragsteils, sich vom Vertrag zu
lösen, ausgeschlossen oder eingeschränkt oder b) das Recht des anderen Vertragsteils, Schadensersatz zu verlangen,
ausgeschlossen oder entgegen Nummer 7 eingeschränkt wird;
9. (Teilverzug, Teilunmöglichkeit) eine Bestimmung, die für den Fall des teilweisen Leistungsverzugs des Verwenders oder bei von ihm zu vertretender teilweiser Unmöglichkeit der Leistung das Recht der anderen Vertragspartei
ausschließt, Schadensersatz wegen Nichterfüllung der ganzen Verbindlichkeit zu verlangen oder von dem ganzen
Vertrag zurückzutreten, wenn die teilweise Erfüllung des Vertrages für ihn kein Interesse hat;
10. (Gewährleistung) eine Bestimmung, durch die bei Verträgen über Lieferungen neu hergestellter Sachen und
Leistungen a) (Ausschluß und Verweisung auf Dritte) die Gewährleistungsansprüche gegen den Verwender einschließlich etwaiger Nachbesserungs- und Ersatzlieferungsansprüche insgesamt oder bezüglich einzelner Teile ausgeschlossen, auf die Einräumung von Ansprüchen gegen Dritte beschränkt oder von der vorherigen gerichtlichen Inanspruchnahme Dritter abhängig gemacht werden; b) (Beschränkung auf Nachbesserung) die Gewährleistungsansprüche
gegen den Verwender insgesamt oder bezüglich einzelner Teile auf ein Recht auf Nachbesserung oder Ersatzlieferung
beschränkt werden, sofern dem anderen Vertragsteil nicht ausdrücklich das Recht vorbehalten wird, bei Fehlschlagen
der Nachbesserung oder Ersatzlieferung Herabsetzung der Vergütung oder, wenn nicht eine Bauleistung Gegenstand
der Gewährleistung ist, nach seiner Wahl Rückgängigmachung des Vertrags zu verlangen; c) (Aufwendungen bei
Nachbesserung) die Verpflichtung des gewährleistungspflichtigen Verwenders ausgeschlossen oder beschränkt wird,
die Aufwendungen zu tragen, die zum Zweck der Nachbesserung erforderlich werden, insbesondere Transport-, Wege, Arbeits- und Materialkosten; d) (Vorenthalten der Mängelbeseitigung) der Verwender die Beseitigung eines Mangels
oder die Ersatzlieferung einer mangelfreien Sache von der vorherigen Zahlung des vollständigen Entgelts oder eines
unter Berücksichtigung des Mangels unverhältnismäßig hohen Teils des Entgelts abhängig macht; e) (Ausschlußfrist
für Mängelanzeige) der Verwender dem anderen Vertragsteil für die Anzeige nicht offensichtlicher Mängel eine Ausschlußfrist setzt, die kürzer ist als die Verjährungsfrist für den gesetzlichen Gewährleistungsanspruch; f) (Verkürzung
von Gewährleistungsfristen) die gesetzlichen Gewährleistungsfristen verkürzt werden;
11. (Haftung für zugesicherte Eigenschaften) eine Bestimmung, durch die bei einem Kauf-, Werk- oder Werklieferungsvertrag Schadensersatzansprüche gegen den Verwender nach den §§ 463, 480 Abs. 2, § 635 des Bürgerlichen
Gesetzbuchs wegen Fehlens zugesicherter Eigenschaften ausgeschlossen oder eingeschränkt werden;
12. (Laufzeit bei Dauerschuldverhältnissen) bei einem Vertragsverhältnis, das die regelmäßige Lieferung von Waren
oder die regelmäßige Erbringung von Dienst- oder Werkleistungen durch den Verwender zum Gegenstand hat, a) eine
den anderen Vertragsteil länger als zwei Jahre bindende Laufzeit des Vertrags, b) eine den anderen Vertragsteil bindende stillschweigende Verlängerung des Vertragsverhältnisses um jeweils mehr als ein Jahr oder c) zu Lasten des anderen
Vertragsteils eine längere Kündigungsfrist als drei Monate vor Ablauf der zunächst vorgesehenen oder stillschweigend
verlängerten Vertragsdauer;
13. (Wechsel des Vertragspartners) eine Bestimmung, wonach bei Kauf-, Dienst- oder Werkverträgen ein Dritter an
Stelle des Verwenders in die sich aus dem Vertrag ergebenden Rechte und Pflichten eintritt oder eintreten kann, es sei
denn, in der Bestimmung wird a) der Dritte namentlich bezeichnet, oder b) dem anderen Vertragsteil das Recht eingeräumt, sich vom Vertrag zu lösen;
14. (Haftung des Abschlußvertreters) eine Bestimmung, durch die der Verwender einem Vertreter, der den Vertrag
für den anderen Vertragsteil abschließt, a) ohne hierauf gerichtete ausdrückliche und gesonderte Erklärung eine
eigene Haftung oder Einstandspflicht oder b) im Falle vollmachtsloser Vertretung eine über § 179 des Bürgerlichen
Gesetzbuchs hinausgehende Haftung auferlegt;
15. (Beweislast) eine Bestimmung, durch die der Verwender die Beweislast zum Nachteil des anderen Vertragsteils
ändert, insbesondere indem er a) diesem die Beweislast für Umstände auferlegt, die im Verantwortungsbereich des
Verwenders liegen; b) den anderen Vertragsteil bestimmte Tatsachen bestätigen läßt.
Buchstabe b gilt nicht für gesondert unterschriebene oder gesondert qualifiziert elektronisch signierte Empfangsbekenntnisse;
16. (Form von Anzeigen und Erklärungen) eine Bestimmung, durch die Anzeigen oder Erklärungen, die dem Ver-
16
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
an auxiliary criterion in the judicial process of controlling the content
of particular contracts. Clauses not included in the above catalogues are
assessed by court on the basis of a general rule mentioned in Article 9 AGBG22
(currently Article 307 BGB), which stipulates that a contract provision is
invalid, if, contrary to the requirement of applying good faith, it consolidates
the position of one of the partners in legal relation without any justification.
In the course of implementing the Directive 93/13 in 1996, the German
legislator chose to apply the easiest solution. Only Article 12 of AGBG
was modified and new provisions were introduced to Article 24 of AGBG
(currently Article 310 § 3 BGB), which broadens the scope of consumer
contracts and allows an assessment of the abusiveness of clauses formulated
only for the purposes of one contract or provisions inserted to a contract by an
independent third party. In frames of the reform of the law on obligations, the
German legislator withdrew the Act on general contract terms and conditions
(AGBG) from 1 January 2002 and all provisions were included in the German
Civil Code with minor amendments (Articles 305-310 of the Civil Code).
1.2. Analysis of the transposition of the Directive 93/13 to the German
legal system
Basic terms
Analyzing the content of the Council Directive No. 93/13 and its transposition
performed by the legislator to the German Civil Code (BGB) in 2002, attention
ought to be paid to a transposition of basic terms, i.e. consumer and seller or
supplier.
According to § 13 of the German Civil Code23, consumer is every natural person
who takes legal action for purposes which cannot be included to their economic activity
or to their independent professional activity. What can be observed in this case is
a literal and harmonious transposition. In this respect the definition included
in BGB drives models from expressions included directly in the Directive and
does not broaden its scope.
wender oder einem Dritten gegenüber abzugeben sind, an eine strengere Form als die Schriftform oder an besondere
Zugangserfordernisse gebunden werden.
22
§ 9 Generalklausel
(1) Bestimmungen in Allgemeinen Geschäftsbedingungen sind unwirksam, wenn sie den Vertragspartner des Verwenders entgegen den Geboten von Treu und Glauben unangemessen benachteiligen.
(2) Eine unangemessene Benachteiligung ist im Zweifel anzunehmen, wenn eine Bestimmung
1.
mit wesentlichen Grundgedanken der gesetzlichen Regelung, von der abgewichen wird, nicht zu vereinbaren ist, oder
2.
wesentliche Rechte oder Pflichten, die sich aus der Natur des Vertrages ergeben, so einschränkt, daß die
Erreichung des Vertragszwecks gefährdet ist.
§ 13 Verbraucher
Verbraucher ist jede natürliche Person, die ein Rechtsgeschäft zu einem Zwecke abschließt, der weder ihrer gewerblichen noch ihrer selbständigen beruflichen Tätigkeit zugerechnet werden kann.
23
17
Regulation of illegal contract provisions in selected countries of the European Union
It is also worth paying attention to the definition of sellers or suppliers, which
was included in BGB in § 1424. The German legislator used here, differently
than in the Directive, the term entrepreneur, but the general objective and
content intentions have been preserved. Contrary to the regulation contained
in the Directive, the German BGB includes to the group of entities being
entrepreneurs also some partnerships, apart from natural persons and legal
persons. Another difference is lack of reference to the public and private
sectors of economy, however attention ought to be paid to the fact that it does
not exercise any important impact on the scope of the applied subject term.
As it has already been stated, the Directive itself does not present differences
in this respect and such precise determining of the kind of enterprise is of no
importance. The main objective is to ensure protection to the widest possible
group of entities in frames of the definition of an entrepreneur, in which
the German legislator fully succeeded.
Standard contracts and unfair contractual clauses
Contrary to the Directive, the German legislator did regulate the issue of
applying standard contracts. They did not introduce the term “contractual
terms individually negotiated” directly to the German code, but they included
a phrase “Provisions of General Commercial Terms and Conditions” in § 307
of BGB25. It ought to be stated that the purpose of the transposition of Article 3
(1) of the Directive26 was preserved and the German legislator included more
rigorous consequences in § 307 of the German code in cases when the provisions
of general contractual terms are excessively detrimental for the partner of
a party who applies such provisions, which results in their ineffectiveness.
The Directive contains a less categorical formulation concerning individual
decisions which can be found unfair and it does not contain the term excessive
detriment. Moreover, the German Civil Code, apart from the requirement of
transl.: Ԥ 14 Entrepreneur
1. Entrepreneur is a natural person, a legal person or a partnership having legal capacity who take legal actions, act in
frames of their economic activity or their independent professional activity. 2. A partnership having legal capacity is a
partnership which has the capacity to acquire rights and assume obligations.’
25
Ԥ 307 Control of content
1. Provisions of General Commercial Terms are ineffective, if, contrary to the requirement of trust and good faith, they
are excessively detrimental for the partner of a party applying them. Excessive damage may result also from the fact
that a provision is unclear and incomprehensible. 2. In case of doubt, it ought to be assumed that detriment is excessive
when a provision:
1. cannot be reconciled with a relevant purpose of statutory regulation from which a derogation is made, or
2. relevant rights and obligations resulting from the nature of a contract are so limited that achieving the objective of
the contract becomes impeded.
Section 3, sections 1 and 2, as well as § 308 and 309 are binding only for the provisions of General Commercial Terms,
through the applying of which parties agree upon regulations different than legal provisions or changing regulations.
Other provisions, according to section 1 sentence two in relation to section 1 sentence one, can be ineffective’.
26
‘Article 3 (1). Contract terms which have not been individually agreed, can be found unfair, if they are in contrast
with the requirements of good faith, cause a significant imbalance of contract rights and obligations of the parties to the
detriment of a consumer’.
24
18
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
good faith, also contains the so-called requirement of trust and states that
the provisions of general contractual terms must be clearly formulated and
comprehensible for the applying party. In § 307 (2) of the German Civil Code
the legislator explains the term excessive detriment stating that it takes place
when a provision cannot be reconciled with a relevant purpose of statutory
regulation from which a derogation is made or when relevant rights and
obligations resulting from the nature of a contract are so limited that achieving
the objective of the contract becomes impeded. Attention ought to be paid to
the fact that the German Civil Code did not implement the content of Article 3
(1) of the Directive literally. It does not state categorically that conditions must
be negotiated individually with the applying party, however it warns that
general commercial terms and conditions will be inefficient, if their content
is excessively detrimental for the applying party. Moreover, the party will not
be obliged to prove it during legal proceedings, as they become ineffective by
law (ex lege). To sum up, by carrying out the transposition of Article 3 (1) of the
Directive, the German legislator granted protection to consumers in every case
when contractual terms do not comply with the requirements of good faith
(bonae fidei), the requirement of trust and are unclear and incomprehensible
and excessively detriment one of the parties.
Article 4 (3) of the Directive says that 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. The German legislator carried out a transposition of
the content of this provision which varies slightly from the European original.
The provisions of § 307 stipulate that contractual terms concerning the main
subject matter of the contract or the adequacy of the price can be found
ineffective, if they are not consistent with legal provisions. Analyzing the
provisions of the German Civil Code it is possible to state that the legislator
made allowance for the postulate of the Directive that terms concerning the
main subject matter of the contract or the adequacy of the price are formulated
in a clear and comprehensible language, which has to be assessed positively,
considering the interpretation of the Directive by reference to its objective, as
entrepreneurs will not be able to insert unfair contractual clauses, since it may
render the clauses ineffective.
Attention also ought to be paid to the transposition of Article 3 (2) of the
Directive27 to the German Civil Code. The German legislator decided in
§ 305 (1) that General Commercial Terms and Conditions are terms drafted in
advance which are intended for many contracts and which one of the parties (the
‘Article 3 (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 preformulated standard contract.’
27
19
Regulation of illegal contract provisions in selected countries of the European Union
presenting party) presents to the other party while concluding a contract. It is of no
importance whether these terms constitute a specific, separate part of a contract, or
whether they are established in the contract document, how broad their scope is, in what
kind of written form they are drafted and of what kind the agreement is. If contractual
terms are established by the parties in a specific way, than General Commercial Terms
and Conditions shall not apply. It is virtually a literal transposition of a provision
of the Directive to the German law, but the German legislator does not say
clearly in the content of the provision that General Commercial Terms and
Conditions are those terms which a consumer was not able to influence, as the
mere drafting and determining terms by one of the parties in advance shows
their character. Establishing contractual terms by the parties in a specific way
decides in advance that they were negotiated individually, in which case the
German Civil Code stipulates that General Commercial Terms and Conditions
shall not apply.
In § 305 (2) of BGB28 the German legislator decided that General Commercial
Terms and Conditions presented by one of the parties as a standard contract
shall constitute a part of a contract only in cases when terms included in
a standard contract have been clearly indicated to the other party and when
it was not possible to indicate them or it was possible, but the conditions
would be incommensurably inconvenient for the party which was obliged
to indicate them, than this party shall make them known and put them in
the place of concluding the contract, so that the other party has the possibility
to become familiar with them. The German legislator also stipulates that
while assessing whether standard provisions constitute a contract binding
on the parties, one ought to consider the possibility to acknowledge them in
a proper way, appropriately considering known physical obstacles existing
for the other paryt.
In case of contracts concluded between entrepreneurs and consumers, the
German Civil Code stipulates in § 310 (3)(1) that General Commercial Terms and
Conditions are binding as conditions set by an entrepreneur, unless they have been
introduced to the contract by a consumer. It is clearly visible that the German
legislator carried out a transposition of Article 3 (2) of the Directive29 in
a harmonious way, ensuring full legal protection to a consumer as a weaker
party at the moment of concluding a commercial contract. This provision also
Ԥ 305 (2): General Commercial Terms and Conditions are part of a contract only in cases when, while concluding
a contract, the party presenting the terms:
1. indicates them clearly to the other party, or – if due to the way of concluding a contract, indicating them clearly is
possible only in incommensurably inconvenient conditions - they make them known and put them in the place of concluding the contract and
2. makes sure that the other party has the possibility to acknowledge them in a proper way, appropriately considering
known physical obstacles existing on the other part’.
29Article 3 (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 preformulated standard contract.’
28
20
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
applies in case of initially formulated contractual terms and terms intended for
a one-time application, but only in cases when consumers could not influence
their contents (§ 310 (3) (2))30. The transposition of the Directive in this respect
has to be assessed positively.
A positive assessment also has to be granted to the transposition of
Article 5 of the Directive31 stipulating that all or certain terms are in writing
and they must be drafted in plain, intelligible language and where there is
a doubt about the meaning of a term, the interpretation most favourable to the
consumer shall prevail. The German legislator stipulates in § 305 (c) of BGB32
that such surprising and ambiguous contractual clauses causing doubts
of interpretational nature shall not be interpreted favourably to the party
presenting terms, but favourably to the consumer. Moreover, they say that
incomprehensible and unusual provisions shall not constitute a component
part of a contract. It is clearly visible that this provision was implemented in
a way to preserve the objective and spirit of the Directive and that the German
legislator decided to ensure a wider legal protection to consumers in case
of incomprehensible contractual terms by stating that they do not automatically,
ex lege, become a component part of a contract. The quoted legal regulation
included in the German Civil Code is therefore more rigorous from this
adopted in the European Directive, which clearly shows that the German
legislator made a legal standard resulting from Article 5 of the Directive
more precise.
Analyzing the provisions of Article 6 (1) of the Directive33, concerning the
exclusion of particular provisions found illegal from a consumer contract
without annulling the whole contract and analyzing their transposition to the
German Civil Code (§ 396 - § 309), it ought to be stated that that the German
legislator transposed the provision of the Union’s Directive in a harmonious
way, preserving its main objective. The German legislator decided that
remaining contractual provisions are binding and the content of a contract
is to be referred to statutory provisions, unless providing for necessary
30 ‘§ 310 (3) (2): § 305 (c) (2) and § 306 and 307 to 309 of this Act, as well as Article 29(a) of the Act introducing the Civil
Code apply in case of initially formulated contract terms also when such terms are intended only for a one-time application and only when consumers could not influence their contents due to their earlier drafting’.
31
‘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).’
32
Ԥ 305 (c): Surprising and ambiguous clauses
(1)Provisions included in General Commercial Terms and Conditions do not become part of a contract when, in given
circumstances, in particular consideration of the way in which a contract is perceived by third parties, they are so unusual that the partner of a party presenting terms does not have to take them into consideration;
(2)When there is doubt concerning the interpretation of General Commercial Terms and Conditions, the interpretation
unfavourable to the party presenting terms shall prevail.’
33
‘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.’
21
Regulation of illegal contract provisions in selected countries of the European Union
amendments would constitute unjustified inconvenience for a party to the
contract, it would lead to the formation of a different legal relation or relevant
rights and obligations resulting from the nature of a contract would be so
limited that meeting the objective of a contract would become impossible or
impeded. In such cases the whole contract can be found ineffective, which
would result from the content of legal regulations (ex lege). It can also be stated
at this point that, according to the will of the European legislator, the German
legislator preserved the main objective and guidelines of the Directive.
Analysis of the transposition of particular clauses found illegal
Particular illegal contractual clauses (abusive clauses) described in Annex 1
to the Directive have been implemented to the German Civil Code in particular
legal provisions. This is not the case of a transposition consisting in literal
transposition of all abusive clauses into one provision of a civil code, as it has
been done in other European countries, e.g. in the Czech Republic. It can already
be stated prima facie that the German legislator did not make allowance for
only two out of seventeen abusive clauses in the transposition process, which
were suggested by the European legislator as illegal in contracts concluded
between entrepreneurs and consumers. Clauses described in the Directive by
the letters g34 and m35 have not been implemented at all to the German Civil
Code. Some of unfair contractual terms mentioned in the Directive have been
implemented to one provision of the German Civil Code (these are clauses
marked with the letters c, e, g, h, i, j in the Directive), while the content of
others has been included in several ones at the same time (clauses marked
with the letters a, b, d, f, l, m, n, o, p, q in the Directive ought to be included in
this group). Among clauses which have been implemented in quite a literal
way or in a way slightly different than in the Directive, the following clauses
ought to be mentioned: a36, which does not allow only the death of a consumer,
but also personal injury in case of excluding or limiting the legal liability of
an entrepreneur; the clause marked with the letter b37, which does not allow
the option of excluding a debt owed to a seller or supplier for offsetting claims
that a consumer may have against them; clause c38, which does not concern
‘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’.
35
‘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’.
36
‘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’.
37
‘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
contract obligations, including the option of offsetting a debt owed to the seller or supplier against any claim which the
consumer may have against him’.
38
‘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’.
34
22
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
durable relationships; clause d39 and clause e40, which mention compensation,
as well as stipulated penalties; clause f41, which applies also in cases of durable
relationships. Paragraph 305 (2)42 of the German Civil Code literally reflect the
content of the abusive clause mentioned in the letter i43of the Union’s Directive.
Similarly, the clause marked with the letter k44 has been transposed in
a harmonious way to the German law. The transposition was slightly different
in case of clauses marked with the letter l45, which mention only short lasting
relationships, not having a durable character. The situation is similar in case
of clauses n46 and o47. Clauses marked with the letters p48 and q49 have been
transposed to the German Civil Code harmoniously and in a way considering
the purpose of the Directive.
To sum up the above reflections, it ought to be noticed that the transposition
carried out by the German legislator does not vary considerably from the
guidelines formulated in the Directive. It should be mentioned that only two
abusive clauses have been omitted in the transposition process by the German
legislator. The transposition of illegal contractual terms has mainly been
carried out successfully and in some cases consumers were given a broader
scope of legal protection.
‘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’.
40
‘e - requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’.
41
‘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’.
42
Ԥ 305 (2) General Commercial Terms and Conditions are part of a contract only in cases when, while concluding a
contract, the party presenting the terms:
3. indicates them clearly to the other party, or – if due to the way of concluding a contract, indicating them clearly is
possible only in incommensurably inconvenient conditions - they make them known and locate them in the place of
concluding the contract and
4. makes sure that the other party has the possibility to acknowledge them in a proper way, appropriately considering
known physical obstacles existing on the other part’.
43
‘i - irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before
the conclusion of the contract’.
44
‘k - enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or
service to be provided’.
45
‘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’.
46
‘n - 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’.
47
‘o - obliging the consumer to fulfill all his obligations where the seller or supplier does not perform his’.
48
‘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’.
49
‘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’.
39
23
Regulation of illegal contract provisions in selected countries of the European Union
1.3. Jurisdiction concerning consumer protection and finding
the provisions of standard contracts illegal
There are many judgements concerning consumer protection, in particular
those concerning public services, referring to the scope of protection granted
to consumers together with finding the provisions of standard contracts
illegal in Germany. Provisions of the German Civil Code of 2002 have not
remained mere letter of law, which can clearly be seen in various judgements
of German courts stating abusiveness of particular contractual clauses and
finding provisions of standard contracts illegal.
In the field of telecommunications services, an interesting judgement
of a German Court of First Instance of 13 March 1993 should be quoted
(26 O 218/94). A consumer organization found two clauses included in
a standard contract of a potentate of telecommunications services – the Telecom
Company – illegal and brought an action against the company. The content of
the first clause was as follows: ‘If a client gives up a service for reasons not
being the fault of Telecom, than Telecom, within three months from receiving
a notice from the client, may give their consent to terminate the contract,
provided that: a) if no telecommunications appliances have been installed so
far, the client should pay a compensation in the amount of 3 monthly fees for
a service plus the value of expenses already incurred by the company in
relation with executing the contract; b) in other cases, the value of compensation
amounts to half of the payment due to the company for a correct execution of
the contract. However, this amount cannot exceed the value of charges for
3 years of service. If the notice concerns only part of contractual provisions,
the above regulations are applied according to the mutatis mutandis principle.’
The content of the second clause was as follows: ‘Apart from rights guaranteed
by the provisions of law, a service supplier has the right to suspend providing
telecommunications services until due payments are submitted by a client.
A supplier may cut off a telephone line in cases when a customer does not
submit payments within 5 working days from receiving a bill or when
a customer refuses to accept a notice about delay in payments’. The Court of
First Instance stated that the total amount of compensation mentioned in the
first of the quoted clauses too high, which is contradictory to §9 and §11 (5a) of
AGBG50. The judgement in the subject case was that the contractual provision
questioned by the consumer organization does allow to claim compensation
for termination for unjustified reasons which are the responsibility of
a client, however for an average client who is a consumer such formulation
of a subject clause is not clear and may render claiming damages justified,
Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen Gesetz vom 9.12.1976 (BGBl. I S. 3317)
Aufgehoben durch Gesetz vom 26.11.2001 (BGBl. I S. 3138) m.W.v. 1.1.2002.
50
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
but in case of a termination for significant reasons for which a client bears
no responsibility. Moreover, the Court stated in the commented justification
that the situation cannot be accepted when compensation amounts have been
established without reference to specific and single cases. What concerns the
second clause, the Court stated its noncompliance with the principle of good
faith included in §9 (1) and (2) point 1 of AGBG, as it did not conform to main
assumptions of the provision it originated from. According to the Court, the
subject contractual clause seems to exclude applying §320 (1) and §320 (2) of
AGBG, which is misleading for consumers. Such situation may occur when
a consumer thinks that an entrepreneur is entitled to cut off a telephone line
in any case, regardless of the amount of delayed payment and on the scope
of customers’ responsibility. It will be difficult for an average consumer to
realize that §320 (2) does apply to the questioned clause. In the commented
judgement the Court was of the opinion that such provision of a standard
contract is very detrimental to consumers and particularly troublesome in case
of durable services. Cutting off a telephone line by an entrepreneur in case of
a smallest delay or a delay not caused by a client is seriously unfair and severe
and may cause great loses for consumers who use telephones for purposes
connected with their economic activity. The 5-day term for payment of a bill
counted from the date of receiving a bill set in the subject contract is also too
short, which makes it inconsistent with legal provisions. Moreover, the Court
expressed an opinion that as a rule the content of a contractual clause and its
interpretation cannot cause serious infringement of consumers’ interest.
The Court of First Instance expressed a similar opinion in its judgement
of 18 February 1998 (2 O 491/97), in which it acknowledged noncompliance
with legal provisions of the following clause: ‘Charges for deactivation are:
65 marks – without VAT, 74,75 marks - with VAT’. The Court decided that the
content of the subject contractual provision is drafted against the regulations of
§10 (7b) and §9 of AGBG, as such high charges for deactivation are not justified
and do not differentiate between various levels of responsibility for different
extents of guilt while terminating a contract. Moreover, according to the
Court, participation of 45 employees on the part of a defendant in the process
of deactivation does not explain such inadequate amount of payment set by
them and does not give any possibility to prove actual costs of deactivation,
which gives the impression of the finality of payments established in the
contract and at the same time is contradictory to the provisions of §11 (5b)
of AGBG.
Attention ought to be paid also to the judgement of a District Court in Kiel of
15 May 1997 (6 U 72/97) stating that the following clause in not compliant with
law: ‘DeTeMobil is entitled to change telephone numbers in case of occurrence
25
Regulation of illegal contract provisions in selected countries of the European Union
of technical or operational problems’, applying of which in consumer contracts
was objected to by a consumer organization. The Court issued a judgement in
the subject matter that this clause is not compliant with §10 (4) of AGBG, which
controls the issues of introducing changes to contracts. The Court stated that
a provision formulated in such a way and included in a contract infringes the
shape of a main service and auxiliary services related to it, to which assigning
a telephone number and changing it should be included, which is possible
only after clients’ acceptance and technical or operational problems are not
a sufficient reason to justify a change of a telephone number without a clientconsumer’s consent. Moreover, such change would have to be necessary
for economical or legal reasons. A change of a telephone number cannot be
qualified as a technical operation either, as it was done in the judgement of
a District Court in Flensburg (2 O 264/95), as it is part of the service. Due to
the above, the District Court in Kiel undermined the judgement of the District
Court in Flensburg.
As regards the sector of public utilities connected with supplying water
to consumers by entrepreneurs, a judgement of the Court of First Instance
of 25 February 1999 (2/2 0 75/98) is interesting, in which the Court stated that
the following clause excluding the guarantee liability of a seller is abusive:
‘Guarantee expires if pipes or drains block again for a reason different than the
one which caused the previous failure’. In the Court’s opinion, the commented
contractual provision is contradictory to § 11 (10a) of AGBG, which does not
stipulate a possibility of a causal link between two consecutive failures of
pipes or drains. The Court also stated in this judgement that the contractual
term: ‘The contracting party or the person accepting a bill cannot quote ius
retentionis in case of an improper delivery of service by the service provider’ is
unacceptable, as in breaches the provisions of § 11 (2) of AGBG and deprives
a party to the contract of a right guaranteed to them in §320 BGB.
In the field of fuel sector, the judgement of the Court of Appeal of 13 February
1997 (6 U 49/96) ought to be paid attention to, in which the following content of
a clause was questioned: ‘In cases when the production, transport and payment
costs or tax levies rise, Primagas may raise fuel prices proportionately to the
growth of the mentioned costs.’ The District Court of First Instance stated
it was contradictory to law, which was upheld later by a Court of Appeal,
due to the breach of the rule of good faith and unfair distribution of rights
and obligations of the parties of to a legal relation, which is contradictory to
§9 of AGBG. In the quoted judgement the Court of Appeal stated that that the
subject clause seriously infringes consumers’ interest, as they cannot know
the proper price of service due to unexpected and unverifiable circumstances
of price changes. In the same case the Court stated that the following clause is
26
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
not compliant with law: ‘If a client is in default in payment of one instalment,
remaining due payments, including those which are to be paid in instalments,
become payable.’ By stating abusiveness of the subject contractual provision,
the Court of Appeal relied on the judgement line of the Federal Supreme
Court concerning sale on instalment, according to which only serious contract
breaches by consumers give the possibility to demand payment mentioned
in the commented clause and delay in payment of one of many instalments
cannot be considered such a breach. Remaining cases infringe consumers’
interests and are ineffective according to the content of §9 of AGBG.
In the electricity sector, the Court of Appeal decided in the judgement of 18
May 2000 (2/2 0 128/99) that the following clause is contradictory to law: ‘The
contract was concluded for the period of 36 months and it shall be automatically
extended by another 36 months after the term expires, if it is not terminated
3 months before the expiry date of the contract.’ This clause was found abusive,
as it remained contradictory to §9 (1) of AGBG which prohibits to apply clauses
seriously infringing consumers’ interests. Moreover, in the Court’s opinion, it
remained contradictory also to the provisions of Article 32 (1) included in the
regulation establishing the principles of calculating tariffs for electrical energy
supplies of 21 June 1979 (AVBEItV), which says that terminating contracts for
electrical energy supplies should be possible after a year from concluding
a contract (this period was than shortened to 1 month). The Court of Appeal
noticed that in the commented clause consumers are deprived of this right,
which causes serious infringements to their rights under the AGBG Act.
While quoting the judgements of German courts, it is impossible to omit
a very interesting judgement of a Court of First Instance of 27 January 2000
(2/2 0 45/99), in which the following clause was found noncompliant with
§11 (15b) of AGBG: ‘I confirm that works are carried out in a proper manner’.
This was part of a standard contract with consumers of a company dealing
with cleaning sever pipers. The subject abusive clause groundlessly moved
the weight of proof concerning the assessment of the correctness of delivered
service to a consumer. In the commented case, the Court also noticed an obvious
contradiction to the provisions of the following clause: ‘General contract terms
accepted by clients constitute an integral part of this contract.’ In the subject
contractual provision, the Court noticed a breach of the provisions of § 2 and
9(1) and (2) of AGBG. General contract terms are binding on consumers only
when they explicitly agree to apply them after they have become familiar
with their content, under which requirement one has to understand creating
conditions for consumers to actually get to know their content, which cannot
be replaced by a statement in a contract saying that a consumer has become
acquainted with the content of a contract. It does not mean that such provision
27
Regulation of illegal contract provisions in selected countries of the European Union
cannot be part of a contract, but it will be of importance if it results from the
circumstances that a consumer had an objective possibility to become familiar
with general contract terms and conditions. The questioned abusive clause
does not contain any reference to this problem, which is the reason why it
was found invalid. Moreover, the Court noticed that it is also contradictory
to §11 (15b) of AGBG to move to consumers the weight of proof that they
did not have real possibility to become familiar with general contract terms
and conditions.
Attention ought to be paid also to the judgement of the Court of First
Instance of 25 February 1999 (2/2 0 75/98), in which a clause limiting or
excluding liability for damage was found illegal. The Court decided that the
following clause: ‘The contracting party is obliged to assess the condition of
a building, before the service provider’s employees leave the building. All
damages should be notified in writing. Any claims submitted later are not
considered’ is contradictory to §11 (7) of AGBG, as, by determining additional
premises to the definition of liability, it causes limiting or excluding it, which
seriously infringes consumers’ interest.
While quoting the judgements of German courts which protected
consumers, it is impossible to omit the judgement of the Court of First Instance
of 6 February 1996 (4 0 1570/95), which stated illegality of the content of the
following clause: ‘In cases when clients terminate a contract, they are obliged to
immediately pay all charges relating to the costs of using postal services by the
KBS company’, which was included in a standard contract with consumers of
cable television. In the subject case, the Court decided that a clause formulated
this way does not meet the premises for a contractual penalty of §336 of BGB,
moreover a customer is not obliged to pay contractual penalty for this reason,
but only to pay the costs of letters sent by post borne by the KBS company,
the payment of which was divided into instalments under the contract, which
proves that the questioned clause does not differentiate between terminating
a contract when the fault is on the part of a customer and when it is on the part
of the KBS company. The Court was of the opinion that such provision may
cause claims that a consumer should pay when a contract was terminated for
reasons which were the fault of the KBS company, which constitutes a serious
infringement of a consumer’s position in the subject legal relation and is the
breach of §9 (1) of AGBG.
In the sector of Internet sales services, there was a very interesting
judgement of the Federal Supreme Court (Bundesgerichtshof) of 2004 No.
VIII ZR 284/04 (qualifier of the German legal information system Abs.
1, 308 No.4), in which the following clause: ‘If it is not possible to dispatch a
given product, we shall dispatch to you at once a replacement product of the same
28
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
quality and price. You will also be able to return this product within 14 days.
If neither the delivery of a product nor of the replacement is possible, than we are
entitled to free ourselves from the obligation to deliver’, was found ineffective.
The Supreme Court decided in the commented case that applying such
provision in General Commercial Terms and Conditions by an entrepreneur
dealing with sales over the Internet is unfair and contradictory to the
provisions of §307 (1) of BGB and as such it is invalid. Moreover, the Supreme
Court decided that this inefficiency was present in the quoted case from the
beginning (ex tunc).
Another interesting judgement was the one of a German Court of First
Instance in AG München of 2006 No. AZ161 C 23695/06. The Court stated, in
reference to services provided over the Internet, that if payment obligation is
hidden in General Commercial Terms and Conditions, than such clause may
be considered surprising and untypical and consequently – ineffective, if on
the basis of the information contained on the Internet page customers cannot
expect a due payment. Stating the abusiveness of such clause may result
from misleading consumers as regards their rights and obligations and from
lack of possibility to become familiar with the contents and the influence on
determining General Terms and Conditions, which may cause detriment to
consumers and may be questioned by them.
While quoting judgements concerning consumer protection and
finding the provisions of standard contracts illegal, it is also worth quoting
a statement which did not find a clause abusive. The Federal Supreme Court
(Bundesgerichtshof) stated in the judgement of 24 October 2002 No. I ZR
3/00 that a clause included in a license agreement of a computer software is
compliant with the German law. The Supreme Court decided in the subject case
that it does not excessively infringe the interest of the other contractual party,
if one includes a provision concerning the right to use software in a limited
time period, which makes it possible to reinstall software on a computer with
better parameters or on other computers, dependent on additional payments.
Moreover, in case of valuable software (in this case worth 50 000 euros), it is
possible to limit it only to usage, without the possibility to sale the software.
In this case it was a yearly payment which entitled to a limited time period
of software usage, which was impossible while buying a new computer. Due
to the above, the German Supreme Court decided that the clause did not
detriment a consumer, therefore it could not be qualified as abusive.
29
Regulation of illegal contract provisions in selected countries of the European Union
1.4. Comparing the German and Polish regulations
To sum up the above observations, it ought to be stated prima facie that
consumers in Germany are well protected in current matters. The scope of legal
protection of consumers comes under the activity of the Ministry of Nutrition,
Agriculture and Consumer Protection (Bundesministerium für Ernährung,
Landwirtschaft und Verbraucherschutz). The function similar to the Polish
Office of Competition and Consumer Protection in Germany is performed by
the Federal Anti-Cartel Office and also by the Federation of German Consumer
Organisations in Berlin (Verbraucherzentrale Bundesverband e.v.). The latter
associates all organisations from particular German Lands. It should be noticed
however, that consumer protection in current, particular and individual issues
is carried out by organisations on the level of Lands, which are subsidized by
the state. It also has to be underlined that, in spite of lack of a general register
of abusive clauses, there is a very effective centre of the protection of tenants
of dwellings in Germany, which keeps a list of illegal clauses for their own
purposes, but only those regarding the protection of dwellings.
The subject scope of protection however, is much broader than in Poland.
It results above all from including all entities concluding contracts for purposes
not directly concerning their main activity to the group of consumers.
According to the German law, also entrepreneurs entering into contracts with
other entrepreneurs as laymen are considered as customers. Such solution is
compliant with the European legislation and deserves complete acceptance.
The German legislation transposed in one legal act unfortunately combines
aspects of procedural law, substantive law and institutional law. Similarly to
the Polish transposition, the German legislator established a particular mode
of finding particular clauses abusive. A court process of controlling unfair
contract clauses, in fact similar to Polish regulation, seems to be highly
formalized, rather illegible and hardly accessible for average consumers not
having general or specific legal knowledge. While considering judicial aspects
of the German legislation, it is also worth paying attention to the fact that the
black list of illegal clauses included in Article 309 of BGB, as well as the list
of potentially illegal clauses included in Article 308 of BGB serve only as an
auxiliary criterion in the judicial process of law application. Courts base their
judgements mainly on the principles of equitableness and on examining good
faith of the parties to legal relations.
A significant element distinguishing the German legislation from the Polish
one is the possibility to find abusive a clause included in a single contract. It
is a novelty of its kind, considering that both the Directive and the majority
of European regulations concern mainly standard contracts. In other words,
the provisions of single contracts, as well as those of a commonly applied
30
Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
standard can be found unfair. It is of importance in particular in connection
with the subject scope of protection, as well as in relation to a statement
treating as unfair those provisions which cause the superiority of one party to
a legal relation.
2. England
2.1. Sources of law
Before the legislation on consumer protection entered into force, the British
legal system based on judicial precedents had already worked out effective
tools enabling to protect this group. According to the English law, standard
contracts can only be applied when the other party had the possibility to
become familiar with them. The role the interpretation of contracts also has to
be emphasized, according to which a standard contract cannot be interpreted
to the favour of a proponent. The first act which regulated the consumers’
issue was the Act of 1977 on unfair contract terms51. The application of this
Act was not limited only to contracts entered into with consumers, but it
also included contracts between entrepreneurs, as well as between natural
persons in some cases. However, this regulation could be applied to a very
limited group of contractual provisions, mainly those concerning the issues
of limiting the liability of one of the parties to a contract.
The Directive 93/13 was at first implemented as a Regulation of 1994 on
unfair terms in consumer contracts regulations52. This Regulation transposed
the Directive almost literally to the British legal system. The regulation also
established the Office of Fair Trading as a basic regulator in cases concerning
consumer protection. It ought to be emphasized however, that contrary to the
Directive’s stipulations, the Regulation did not establish the right of consumer
organisations to represent customers. Only the new Regulation of 1999 on
unfair terms in consumer contracts regulations53 together with the Act of
1977 granted a complex legal protection to consumers. However, both acts
use different language and contain imprecise and contradictory provisions.
A bill on unfair contractual clauses was published in 2005 and it contained
suggested amendments and unifications of provisions of the Act of 1977 and
of the Regulation of 199954. This bill also contains suggestions concerning the
improvement of protection for micro-entrepreneurs hiring fewer than ten
51
The Unfair Contract Terms Act 1977, Chapter 50.
Unfair Terms in Consumer Contracts Regulations, UTCCR; S.I. 1994/3159.
The Unfair Terms in Consumer Contracts Regulations 1999 S.I. 1999/2083.
54
See the bill with an end report: the Law Commission and the Scottish Law Commission on unfair terms in contracts,
LAW COM No. 292/SCOT LAW COM No. 199.
52
53
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Regulation of illegal contract provisions in selected countries of the European Union
employees, in a way that they can meet the requirements of standard contracts
for such contracts which are not concluded in the process of negotiation or the
negotiating of which does not only concern a change in the price or the subject
of a contract.
2.2. Analysis of the transposition of the Directive 93/13 to the British
legal system
Basic terms
All basic definitions and terms have been regulated in the so-called statutory
glossary included in Article 3 (1) UTCCR55, but it has to be emphasized that
definitions included there do not vary from those included in Article 2 of the
Directive. According to UTCCR, a “consumer” means any natural person
who, in contracts covered by these Regulations, is acting for purposes which
are outside his trade, business or profession56. It is also a literal transposition
of Article 2 (b) of the Directive. The definitions of sellers and suppliers were
implemented to the British legal system in a similarly strictly harmonious way.
Article 3 (1) of UTCCR says that in these Regulations “seller or supplier” means
any natural or legal person who, in contracts covered by these Regulations,
is acting for purposes relating to his trade, business or profession, whether
publicly owned or privately owned57. The British legislator copied the content
of Article 2 (c) of the Directive in a simple way, not making even slightest
changes.
Analysis of the transposition
Similarly to the European Directive, the British legislator regulated the
problem of applying the so-called standard contracts. Article 5 (1) is a literal
reflection of Article 3 (1) of the Council Directive 93/13. It was stated in both
regulations that ‘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.’ The terms “individually
negotiated contractual terms” implemented to the British law in a harmonious
way (it is crucial for the regulation of the Union’s Directive), allows to settle
illegal contractual clauses inserted in standard contracts.
Unfair Terms in Consumer Contracts Regulations; S.I. 1994/3159 (hereinafter: UTCCR).
Article 3 (1) of the Regulation says: In these Regulations “consumer” means any natural person who, in contracts covered by
these Regulations, is acting for purposes which are outside his trade, business or profession.
55
56
Article 3 (1) of the Regulation says: In these Regulations “seller or supplier” means any natural or legal person who, in contracts covered by these Regulations, is acting for purposes relating to his trade, business or profession, whether publicly owned or
privately owned.
57
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
The term “unfair contractual terms” was also identically defined in
the British regulation, as its subject scope embraces contradiction to the
requirement of good faith causing a significant imbalance in the parties’ rights
and obligations arising under a contract, to the detriment of the consumer. It
is clearly visible that the British legislator decided, according to the guidelines
included in the Directive, to grant legal protection to consumers in any case
when a concluded contract could be to their detriment, resulting from an
imbalance in the parties’ rights, causing a decrease in consumer’s rights, or
a decrease in entrepreneur’s liability.
The British legislator also literally implemented the content of the remaining
part of the provisions of Article 3 of the Union’s Directive concerning standard
terms presented to consumers. Consumers were granted protection identical
as in the Directive, in case they were presented terms which had already
been drafted in the form of a standard contract and on the drafting of which
consumers had no influence. In such cases, the contractual terms ex lege will be
treated as General Commercial Terms and Conditions and not as individually
negotiated terms. Negotiating one or more contractual aspects by the parties
and applying a standard contract for the rest also does not exclude applying
provisions concerning General Commercial Terms and Conditions to the
whole contract, if a general assessment of a contract indicates such need. In
the British Regulation, just as in the European regulation, the burden of proof
that the whole contract was individually negotiated and not only particular
parts of it, belongs to an entrepreneur and they are responsible for proving
their statements in potential court proceedings.
While analyzing the provisions of the British UTCCR Regulation, it ought
to be stated that Article 4 of the Council Directive has also been transposed
in an identical way. The British legislator decided in Article 6 (2) of the subject
Regulation that an unfair character of contractual terms cannot concern the
subject of a contract and a clause containing its price and consideration for
delivered goods or services, provided that essentilia negotii will be expressed in
plain and intelligible language58. Such literal transposition of a provision and
a clear definition of all relevant contractual elements will not make it possible
for entrepreneurs to circumvent it and insert abusive clauses to contracts.
Moreover, it makes the discussed regulation something more than a “dead
law”.
The transposition of Article 5 of the Union’s Directive 93/13 should be
assessed in a similar way. Also in this case, introducing a Union’s provision
to the British legislation was complete and harmonious. The British legislator
Article 5 (2) of the UTCCR Regulation says: In so far as it is plain intelligible language, the assessment of fairness of a term
shall not relate(a)to the definition of the main subject matter of the contract, or
(b)
to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
58
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Regulation of illegal contract provisions in selected countries of the European Union
decided to grant full legal protection to consumers in cases when the language
used in not plain or intelligible and ordered to interpret all doubts to their
favour.
The transposition of Article 6 (1) of the Union’s regulation concerning the
exclusion of only particular provisions found illegal from consumer contracts,
without annulling the whole contract also deserves a positive assessment. The
British legislator decided in Article 8 of UTTCR that unfair contractual terms
will not be binding on consumers and it will not make a contract invalid, if it
is capable of continuing in existence without the unfair term59. Also Article 6
(2) of the Directive has been transposed to the British law with the objective
and spirit of the Directive preserved. According to the will of the European
legislator, the British legislator decided that consumers cannot lose legal
protection granted to them under the Directive.
The process part of the Council Directive 93/13, as well as the part relating
to international private law included in the British UTCCR Regulation has
been implemented in a literal way, not varying from the guidelines formulated
by the European legislator.
Analysis of the transposition of particular contractual clauses
considered illegal
Particular abusive clauses described in Annex 1 to the Directive have been
implemented to the British law in a completely literal way and the objective
and spirit of the Union’s regulation have been preserved. In the second
part, a list of the first subject regulation the British legislator mentioned all
provisions the insertion of which to a contract clearly proves their unfairness.
Analyzing them enables to utter a statement that the British legislator did not
omit in the process of transposition any of the seventeen clauses mentioned
in the Directive which are considered abusive and are not applied in contracts
between entrepreneurs and consumers.
2.3. Jurisdiction concerning consumer protection and finding
the provisions of standard contracts illegal
There are several offices in Great Britain which deal with analyzing clauses
in terms of their abusiveness. A basic controller of the consumer market is the
Office of Fair Trading60. In cases concerning telecommunications decisions are
Article 8 of the UTCCR Regulation says: (1) An unfair term In a contract concluded with a consumer by a seller or supplier
shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term.
60 http://www.oft.gov.uk/
.
59
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
issued by the Office of Communication61, while the regulation of the electricity
and gas market is carried out by the Office of Gas and Electricity Markets62.
These offices carry out proceedings which concern finding clauses applied by
entities operating on a given market noncompliant with the Regulation of 1999
on Unfair Terms in Consumer Contracts. Due to a limited scope of this study,
the authors shall present below only selected judgements concerning unfair
terms in consumer contracts concluded in the field of telecommunications,
Internet supply etc. The significant sources of information on illegal
contractual clauses in Great Britain are informational newsletters published by
particular offices which are prepared on the basis of the results of conducted
proceedings. Information contained in these newsletters is not as precise as
those published on the Internet page of the Polish Office of Competition and
Consumer Protection in the list of illegal clauses.
Analysis of the collected judgements allows formulating a thesis that
entrepreneurs most often violate the provisions of Article 7 (1) of UTCCR
(Article 5 of the Directive) which obliges a professional to use a plain and
commonly intelligible language. The chosen judgements prove that suppliers
of services very often refer to other regulations in contracts concluded with
consumers, or they refer to other legal acts, which considerably impedes
taking rational decisions for consumers. To exemplify this thesis, the
authors quote the decision issued against UK Online Ltd., who referred
to “statutory rights”63 in one of the provisions of its contract, without
explaining this term. Similarly, in the case against Hutchison 3G Ltd. a provision referring to a regulation concerning consumer rights and obligations
was found illegal. This clause said that consumers could not end the agreement
using means such as the Consumer Protection (Distance Selling) Regulations64. In the
same case also another provision was found unfair, which “authoritatively”
said that no provision of an Act concerning consumer protection was violated.
In other words, an entrepreneur assured a consumer in the contract that all
their rights were duly respected. This clause said that nothing in the agreement
limited or removed Hutchison’s liability for death or personal injury caused by their
negligence or for any liability which cannot be limited or excluded by applicable law,
and that the consumer’s statutory rights were not affected 65. OfCom paid particular
http://www.ofcom.org.uk/.
http://www.ofgem.gov.uk/.
63
Complainant: A member of the public; Complaint against: UK Online Limited (“UK Online”); Case opened: 9 January 2006; Case Reference: CW/00887/01/06 ; Content of the clause: “These terms and conditions do not affect your statutory rights”.
64
Complainant: A member of the public; Complaint against: Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January
2006; Case Reference: CW/00888/01/06; Content of the clause: consumers could not end the agreement using means such as the
Consumer Protection (Distance Selling) Regulations 2000.
65
Complainant: A member of the public; Complaint against: Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January
2006; Case Reference: CW/00888/01/06; Content of the clause: nothing in the agreement limited or removed 3’s liability for
fraud, death or personal injury caused by their negligence or for any liability which cannot be limited or excluded by applicable law,
and that the consumer’s statutory rights were not affected.
61
62
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Regulation of illegal contract provisions in selected countries of the European Union
attention to the last phrase concerning the guarantee that consumer’s statutory
rights were not affected, due to the imprecise nature of this term.
The following clause was also found abusive: “consumers agree to comply
with the terms of any end user license agreement and any other agreements reasonably
required by the owners of any intellectual property rights in any software provided to
you by us. A consumer shall also indemnify UK Online against all claims, liability,
damages, costs and expenses, including legal fees, incurred or suffered by us arising
out of any non-compliance with the terms of such end user license or other similar
agreements” 66. Similarly, a decision questioning legal jargon was issued in a case
against the Namesco Limited company, who inserted to one of their standard
contracts a clause containing the statement that neither party would be liable
for a breach of its obligations (other than any obligation to pay money) in the
event of force majeure and the party had acted reasonably and prudently to
prevent and minimise the effect of such causes67.
It is also worth to notice that the decisions of the Office of Communication
(so-called OfCom) quite often repeal too syntactically complicated contractual
clauses and provisions which are formulated in a way which makes it
impossible to understand them without getting to know the content of the
whole contract. The decision issued against the O2 network can serve as an
example. The company used a clause which said: You must not use or permit any
other person to use the service other than in accordance with the acceptable use policies
of any connected networks and (if appropriate) any relevant internet standards68.
Understanding of this clause without becoming familiar with part of the
contract which contained “use policies of networks” and “internet standards”
seems to be impossible, which was emphasized by the British controller.
Another group of infringements, often questioned by the Office of
Communication, are clauses containing limitations or exclusions of consumer
rights, which are contradictory to the provisions of Article 1 (b) of Annex to
the Directive. As an example authors give clauses limiting consumer rights
resulting from warranty in respect of material defaults of goods or services.
In a case against Namesco Ltd. the Office of Communication decided that the
following clause was unfair: ‘It would make no warranties or representations either
express or implied in relation to whole or part of the service and that such warranties
Complainant: A member of the public; Complaint against: UK Online Limited (“ UK Online”); Case opened: 9 January 2006; Case Reference: CW/00887/01/06; Content of the clause: “agree to comply with the terms of any end user license
agreement and any other agreements reasonably required by the owners of any intellectual property rights in any software provided
to you by us. You shall indemnify us against all claims, liability, damages, costs and expenses, including legal fees, incurred or suffered by us arising out of any non-compliance with the terms of such end user license or other similar agreements”.
67
Complainant: A member of the public; Complaint against: Namesco Ltd; Case opened: 14 March 2005; Case Reference: CW/00822/03/05; Clause 11.1 said: neither party would be liable for a breach of its obligations (other than any obligation to
pay money) in the event of force majeure and the party had acted reasonably and prudently to prevent and minimise the effect of such
causes.
68
Complainant: A member of the public, Complaint against: O2 (UK) Ltd, Case opened: 8 March 2005; Case reference:
CW/00820/03/05; Content of the clause: You must not use or permit any other person to use the service other than in accordance
with the acceptable use policies of any connected networks and (if appropriate) any relevant internet standards.
66
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
were expressly excluded’ 69. The clause releasing Namesco Ltd. of liability to the
customers for all loss of profits, revenue or goodwill under the agreement
was also questioned in this standard contract70. Similar clauses were also
questioned in contracts of Tesco.net company which dealt with the provision
of internet services. One of the provisions included in standards offered by the
company stipulated releasing it of any liability in case of technical problems of
providers (including errors or interruptions of the service), as well as in cases
of unsuitability or inaccuracy of the service to customers requirements and all
other kinds of company’s liability71. Also another known telecommunications
potentate Vodafone Ltd. had clauses in their contracts which stipulated limiting
all company’s liability except for the death and personal injuries of clients.
These clauses were to partly meet the Directive requirements, simultaneously
annulling liability for non-meeting or undue meeting of a requirement, as
well as Vodafone’s liability for other reasons72. It ought to be mentioned that
Vodafone applied the same illegal clauses in the majority of their contracts73,
which considerably increased the number of potentially affected customers.
Also in the UK Online Ltd. contract there was a clause enabling the company
to timely apply a temporary suspension of the service for maintenance or technical
repair purposes, without giving notice, and is not liable to pay compensation to the
consumer for this loss of service74.
Attention also ought to be paid to the decision of the Office of Communication
regarding the Wanadoo UK plc. company75, whose standard contracts
contained a range of limiting clauses or those which excluded company’s
liability. For instance, the company limited its liability for errors, inaccuracies
Complainant: A member of the public; Complaint against: Namesco Ltd; Case opened: 14 March 2005; Case Reference: CW/00822/03/05 Content of the clause: It would make no warranties or representations either express or implied in relation
to whole or part of the service and that such warranties were expressly excluded.
70
Complainant: A member of the public; Complaint against: Namesco Ltd; Case opened: 14 March 2005; Case Reference: CW/00822/03/05 Content of the clause: Namesco would not be liable to the customer for any loss of profits, revenue or
goodwill under the agreement.
69
Complainant: A member of the public; Complaint against: Tesco.net; Case opened: 18 December 2003; Case Reference: CW/00716/11/03; Content of the clause: “Tesco.net disclaims all liabilities in connection with the following: technical
problems including errors or interruptions of the Service; unsuitability, unreliability or inaccuracy of the Service; inadequacy of the
Service to meet your requirements” and further: To the full extent allowed by applicable law, you agree that we will not be liable to
you or any third party for any consequential or incidental damages (including but not limited to loss of revenue, loss of profits, loss
of anticipated savings, wasted expenditure, loss of privacy and loss of data) or any other direct, indirect, special or punitive damages
whatsoever that arise out of or are related to the Tesco.net websit.”.
72
Complainant: Leicestershire County Council; Complaint against: Vodafone Ltd; Case opened: 16 November 2004;
Case Reference: CW/00801/11/04; Content of the clause: Limitation of liability excluded all liability other than death or personal
injury from Vodafone’s negligence.
73
I.a. in following services: Top up transfer contract; Vodafone Websites contract; Vodafone Mail contract; Airtime
contract; Pay-monthly contract; Vodafone Live! Postcard.
74
Complainant: A member of the public; Complaint against: UK Online Limited (“ UK Online”); Case opened: 9 January 2006; Case Reference: CW/00887/01/06 Content of the clause: UK Online can apply a temporary suspension of the service
for maintenance or technical repair purposes, without giving notice, and is not liable to pay compensation to the consumer for this
loss of service.
75
Complainant: A member of the public; Complaint against: Wanadoo UK Plc; Case opened: 2 August 2004; Case Reference: CW/00779/08/04.
71
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Regulation of illegal contract provisions in selected countries of the European Union
or omissions about the information included on its web pages76, damages
resulting from using links contained on their websites77, as well as viruses or
other damages resulting from using internet services78. Wanadoo also limited
their liability for damages suffered by the consumer in relation to the provision
of the services to £500 in any 12-month period79. Finally, it is worth quoting a
somewhat implicit abusive clause included in a standard contract applied by
a mobile telecommunications network O2. This clause said that O2 would do
their best to provide service to their customers and any additional service requested
by customers (such as roaming) or if they instruct the network to change customers’
service (i.e. to bar calls) by any date O2 have agreed with them but O2’s ability to do
so may be affected by circumstances beyond their control and we they not be liable to
customers if this is the case80. This clause is the best example of “circumvention”
of provisions prohibiting to apply unfair contract terms used by entrepreneurs.
A mobile operator assures about the greatest care with which their services
are provided and causes that consumers do not pay attention to the second
part of the clause, which is actually the most important and in fact limits their
rights.
An equally numerous group of cases concern the decisions to find abusive
the clause from Article 1(i) of the Directive (irrevocably excludes binding
the consumer to terms with which he had no real opportunity of becoming
acquainted before the conclusion of the contract). It can be exemplified with
the provisions included in a standard contract applied by the O2 mobile
operator, who directly made consumers respect unknown tariffs, stating that
consumers are liable for calls made, also in cases when tariffs are changed
within the accounting period81. An infringement of consumer interest which
occurs equally often is inserting consumers’ statements into standard contracts,
saying that they know all contract terms, they have become acquainted with
excludes all liability for errors, inaccuracies or omissions in relation to all information provided by it in connection
with the Member Services. Further, it excludes liability (by making no representations or warranties) about the information included on its web pages (including links to third parties’ web pages).
77
As part of the Service, we provide you with links to websites over which we have no operational control. If you access
such websites you do so at your own risk. You shall be solely responsible for any decisions and actions taken based on
the information contained on such websites.
78
Those agreement excludes Wanadoo’s liability in contract, tort (including negligence) or otherwise for any damage or loss arising
from the consequence of viruses received by the consumer via the services or of Wanadoo’s failure to provide the services in accordance with the terms of use.
79
Wanadoo’s liability in contract, tort (including negligence) or otherwise for any loss or damage suffered by the consumer in relation to the provision of the services is limited to £500 in any 12-month period.
80
Complainant: A member of the public; Complaint against: O2 (UK) Ltd; Case opened: 8 March 2005; Case reference:
CW/00820/03/05 Content of the clause: We will do our best to provide service to you and any additional service requested by you
(such as roaming) or if you instruct us to change your service (i.e. to bar calls) by any date we have agreed with you but our ability
to do so may be affected by circumstances beyond our control and we will not be liable to you if this is the case.
81
Complainant: A member of the public; Complaint against: O2 (UK) Ltd; Case opened: 8 March 2005; Case reference:
CW/00820/03/05 Content of the clause: We may at our discretion apply a usage limit to your account (which we may alter by
advising you) and may suspend your service if this limit is exceeded. As our billing system is not instantly updated each time you
use the service it is possible, especially when making international calls or roaming, to exceed your usage limit. You will be liable for
all charges incurred including any charges exceeding your usage limit. You may be asked to pay any charges incurred in excess of
your usage limit before service is reinstated.
76
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them and understood them. Such clauses were to be found i.a. in contracts
concluded with consumers by UK Online Ltd.82 and Hutchison 3G Ltd.83.
As aforementioned, clauses referring to internal regulations, policies or
even to generally accepted rules of using e.g. the Internet (the rules of using
Internet forums or the privacy policy) also appear very often in consumer
contracts. The British Office of Communication also finds such clauses
contradictory to the provisions of the Union’s Directive and to the British
law. For instance, the authors quote the decision of OfCom concerning the
Hutchison 3G Ltd. company, who often included in their standard contract
provisions concerning regulations, other attached documents, as well as rules
for use of certain services, although such rules did not exist when the contract
was being concluded, but they could only be introduced in the future84.
A large group of judgements is made up of decisions prohibiting the use
of clauses imposing excessive damages on customers or penalties for not
meeting assumed obligations. As regards contracts concerning the provisions
of telecommunications services, it has virtually become a rule that operators
apply clauses allowing them to block the possibility of making calls in cases
when consumers do not pay their telephone bills. It should be reminded that
such provision was questioned in Germany. Unfortunately, it often happens
that similar clauses are applied by Internet suppliers who ensure themselves
the possibility to cut off the Internet in cases when consumers do not make
timely payments to their operators. For obvious reasons, the provision
obliging consumers to pay 4% interests (calculated on a daily basis) of a ratio
determined in the contract, in cases of not making timely payments resulting
from invoices issued by the company, was also found an unfair clause85.
To commonly applied abusive clauses one can also include clauses
concerning a change of entrepreneurs’ obligations, as well as those causing a
large imbalance of services. The clause included in a standard contract applied
by the O2 mobile operator can serve as a great example ‘Occasionally we may
have to alter the number of your Mobile Phone, or any other name code or number
Complainant: A member of the public; Complaint against: UK Online Limited (“ UK Online”); Case opened: 9 January 2006; Case Reference: CW/00887/01/06 Content of the clause: subscribing to the service, consumers were deemed to have
both understood and accepted the following terms and conditions, and agreed to follow them.
83
Complainant: A member of the public; Complaint against: Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January
2006; Case Reference: CW/00888/01/06; Content of the clause: Client agrees to terms in all documents produced by 3G, including those 3G might publish in future.
84
Complainant: A member of the public; Complaint against: Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January
2006; Case Reference: CW/00888/01/06; Content of the clause: Complainant: A member of the public; Complaint against:
Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January 2006; Case Reference: CW/00888/01/06; Content of the clause:
Complainant: A member of the public; Complaint against: Hutchison 3G (UK) Ltd (“3”); Case opened: 9 January 2006;
Case Reference: CW/00888/01/06; Content of the clause: 3G may publish an acceptable use policy providing more detail about
the rules for use of certain 3G Services. If 3G publish such a policy, it may amend it from time to time, and that consumers can view
it on 3’s website or request a copy from 3G Customer Services.
85
Complainant: A member of the public; Complaint against: Namesco Ltd; Case opened: 14 March 2005; Case Reference: CW/00822/03/05 Content of the clause: Namesco is allowed to charge interest on unpaid charges at the rate of 4% above the
NatWest base rate from day to day.
82
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Regulation of illegal contract provisions in selected countries of the European Union
associated with the service for reasons beyond our control or where we reasonably
believe that the alteration will enhance your use of the service’86. Another example
referring to a change in contract terms is a provision included in UK Online
contract which entitled the company to modify the contract at any time, by
e-mailing any changes to consumers87.
It can be concluded from the quoted judgements that the scale of violations
of the Directive 93/13 and the Regulation UTCCR issued on the basis of this
Directive is much bigger in Great Britain than it is in Poland. It is also worth to
notice that in many cases that abusiveness of a clause is not visible immediately
and only a deep analysis concerning a particular case can justify finding a
given contractual provision unfair.
2.4. Comparing the British and Polish transposition
A complex system of legal protection of consumers in Great Britain and
many years’ experience in applying consumer law, as well as a great number
of non-governmental organisations supporting and protecting consumer
interest of the public and of individuals make Great Britain, which to some
extent is a pioneer in this legal subject, has automatically become the country
which defends consumers’ interest in the best and most complex way. The
efficient Office of Fair Trading with a large number of regional offices provide
assistance to consumers from the British Isles and from other countries in
a quick and simple way. It is also worth to emphasize that consumers can
easily find a lot of useful information in the Internet or receive assistance by
telephone.
Comparing particular elements of the British transposition, it is worth
paying attention to the definition of a consumer which is broader than in
Poland. As it has been indicated before, consumers are not only natural persons
(as it is in Poland), but also other entities which participate in a given legal
relation as non-professionals. Such formulation of the definition of a consumer
considerably broadens the group of entities covered by legal protection. It
is worth noticing that in spite of increasing the number of consumers, the
quality of protection has not deteriorated. Quite contrary – the availability of
legal assistance for particular consumers is surprising and worth transposing
to the Polish ground.
Complainant: A member of the public; Complaint against: O2 (UK) Ltd; Case opened: 8 March 2005; Case reference:
CW/00820/03/05; Content of the clause: Occasionally we may have to alter the number of your Mobile Phone, or any other name
code or number associated with the service for reasons beyond our control or where we reasonably believe that the alteration will
enhance your use of the service.
87
Complainant: A member of the public; Complaint against: UK Online Limited (“ UK Online”); Case opened: 9 January 2006; Case Reference: CW/00887/01/06 Content of the clause: UK Online may modify the Contract at any time, by e-mailing any changes to consumers.
86
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
A smaller number of clauses and the fact that they did not have to be
translated into the mother language makes using internal British regulations
virtually instinctive and does not cause interpretation problems. The Polish
regulation in this respect is not that perfect due to the fact that the Directive’s
provisions first had to be translated into Polish and only than could they be
interpreted. It is worth emphasizing at this point that the Polish transposition
of the Directive, due to occasional mistakes concerning i.a. applying colloquial
and not legal language88, may be difficult to understand, which causes
doubts concerning the interpretation and consequently – a greater number
of infringements concerning improper application of legal provisions by
entrepreneurs.
3.
France
3.1. Sources of law
Consumer protection and issues concerning the control over illegal contract
terms in France were initially regulated only by fragmentary provisions of the
French Civil Code. The control over abusive clauses in France was mainly
developed by practice and judgements which appeared in this area. The
first vast regulation was the Act 78-23 of 10 January 1978 on information and
consumer protection, the so-called loi scrivener89. The Act 78-23 was above
all supposed to establish the principles of acting in frames administrative
controls of illegal contractual terms by the Commission for Abusive Clauses.
This body was equipped with rights to issue recommendations on the basis
of which executive power could prohibit to apply contract provisions by
executive decree. It ought to be noticed however, that in spite of procedures
which still function like that, they do not prove to be effective in practice, due
to the fact that only two decrees have been issued so far which prohibited to
apply certain clauses. Nonetheless, the activity of the Commission for Abusive
Clauses plays a significant role in creating consumer policy through exercising
influence on the judgements and performance of expert functions in terms of
qualifying abusive clauses, which shall be discussed in a further subsection
of this study. In 1991 the French Supreme Court established the principles of
stating illegality of some contractual clauses in order to increase and expand
control over them and two years later the provisions of the Act were inserted
in Article L-132 and in subsequent ones of the new Consumer Code – Code de
One of several examples is using the word “resignation” from a contract used by the legislator in Article 3853 instead
of renouncement or termination.
89
Loi n° 78-23 du 10 janvier 1978 sur la protection et l’information des consommateurs de produits et de services.
(dite „loi Scrivener”).
88
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Regulation of illegal contract provisions in selected countries of the European Union
la consommation90. Apart from administrative controls (performed by entitled
state authorities) and judicial controls in individual cases, it was possible from
1998 to bring action by institutions dealing with consumer protection, which
are currently regulated by Article L-421-1 of the Consumer Code.
The Directive 93/13 was only implemented to the French legal system by
the Act 95-96 of 1 February 1995 on abusive provisions and the presentation
of contracts and regulation of different kinds of activity of economic and
commercial nature91, which slightly modified the so far existing provisions
of the Consumer Code. It is worth noticing that before the Directive 93/13
was implemented, the French Consumer Code ensured a level of consumer
protection against harmful terms which was so sufficient that the modification
exercised by the abovementioned Act was merely a small amendment
compared to the entirety.
3.2. Analysis of the transposition of the 93/13 Directive to the French legal
system
The key provision of Article L-132-192 of the Consumer Code introduces
a standard of finding (assessment) of abusiveness, which is an equivalent of
Article 3(1) of the Directive. According to this provision, in contracts concluded
between professionals (entrepreneurs) and non-professionals or consumers,
illegal are found those clauses (abusive) whose objective is to create, to the
detriment of a non-professional or consumer, a significant imbalance /
considerable incommensurability/ between rights and obligations ascribed to
particular parties to a contract. A closer analysis of this definition allows to
distinguish its two aspects: the objective and subjective scope, which means to
determine the criteria of abusiveness of a given provision. Referring to subject
issues, it ought to be noticed that the French law distinguishes two kinds of
consumer relations. These are strict consumer relations, i.e. those which occur
between a professional and natural persons acting for personal purposes, a
buyer who ends the chain of production and distribution of a commodity or
service. Relations between professionals and non-professionals are also of a
consumer nature, i.e. relations with persons who conclude a contract with the
purpose of purchasing a commodity or service for the needs of their enterprise
and within the scope of its activity, but the action serving this purpose cannot
LOI no 93-949 du 26 juillet 1993 relative au code de la consommation (partie Législative) (1).
LOI no 95-96 du 1er février 1995 concernant les clauses abusives et la présentation des contrats et régissant diverses
activités d’ordre économique et commercial (1) Act no. 95-96 of 1 February 1995 art. 1, annex to the Journal officiel of 2
February 1995) (Order no. 2001-741 of 23 August 2001 art. 16 Journal officiel of 25 August 2001).
92
L.132-1 (1) “Dans les contrats conclus entre professionnels et non-professionnels ou consommateurs, sont abusives
les clauses qui ont pour objet ou pour effet de créer, au détriment du non-professionnel ou du consommateur, un déséquilibre significatif entre les droits et obligations des parties au contrat”.
90
91
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
be included in the professional specialization of buyer93. The object scope
of the above provision refers to the criterion of “detriment” and “significant
imbalance”. The Directive, on the other hand, also indicated the criterion of
being “contradictory to the requirements of good faith”. Comparing thee two
premises indicates that the French regulations depart from the conditions
of the occurrence of entrepreneur’s good or bad faith. This means that the
definition of “good faith” as a mental condition (attitude) of a contractual
party referring to their knowledge of a legal relation and/or a subject right
resulting from it will not be taken into consideration while deciding upon the
abusiveness of a given provision.
Passing on to the analysis of another paragraph of Article L-132-1 of the
Consumer Code, attention should be paid first to a provision which solves
the issue of “individual agreement” in an entirely different way than
the Directive94. As it is stipulated in Article 3(1) of the Directive, as unfair
clauses can be regarded those contractual terms which were not individually
negotiated. According to the provisions of the Consumer Code95 on the other
hand, these provisions apply regardless of the form or the basis of a contract,
including contracts containing terms negotiated freely or those which are
subject to free negotiations. The transposition of this provision turned out to
be much more advantageous for consumers than the protection stipulated in
the Directive. The French legislator granted protection not only to consumers
who are not aware of their rights, but also to those who refused to accept
provisions disadvantageous for them and made an attempt to negotiate
them. It is significant at this point, that the French legislation does not make
this protection depend on the results of conducted negotiations which has
to be assessed positively. Moreover, there is also another distinction in this
provision whose function is to make more precise and solve all doubts
concerning the object scope of abusive clauses and standard contracts which
may contain them in trade with consumers. This Article says96 that provisions
concerning the regulation of unfair contractual terms apply also to order forms,
invoices, warrants and delivery receipts or tickets. This enumeration seems
not to have been definitely completed. The preceding sentence saying that
these provisions are applied regardless of the form or the basis of a contract
clearly indicates an exemplary character of a list of documents. Provisions
included in such documents are also protected against illegal clauses, as they
M. Skory, Klauzule abuzywne w polskim prawie ochrony konsumenta, Zakamycze 2005, page 331.
L.132-1 (4) “Ces dispositions sont applicables quels que soient la forme ou le support du contrat. Il en est ainsi notamment des bons de commande, factures, bons de garantie, bordereaux ou bons de livraison, billets ou tickets, contenant
des stipulations négociées librement ou non ou des références à des conditions générales préétablies.
95
Article L.132-1 (4): „These provisions are applied regardless of the form or the basis of a contract. They concern also
order forms, invoices, warrants and delivery receipts or tickets containing terms negotiated freely or not or references
to previously determined general terms.”
96
Article L.132-1 (4) as above.
93
94
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Regulation of illegal contract provisions in selected countries of the European Union
actually result from previously concluded contracts. It is a conformation that
not only a contract itself, but also all related documents, which shape rights
and obligations as well, are subject to the control of abusiveness of included
provisions.
As concerns the moment for which an abusive character of a given clause
is determined, the French legislator used a Community solution and applied
provisions identical as those in Article 4 (1) of the Directive97. The same can be
stated about the provisions concerning the main subject of a contract, the price
and consideration. Also in this case, according to the Directive, regulations
have been implemented directly, without introducing any modifications,
applying the principle of excluding from judgement an unfair character of
terms determining relevant contractual provisions98. Moreover, in situations
when contracts are concluded in writing, their provisions, just as it is stipulated
in Article 5 of the Directive, have to be presented and formulated in a plain and
intelligible way. In case of occurrence of any doubts, they will be interpreted
to the advantage of consumers or non-professionals99. Determining the results
of finding these terms unfair, however leading to identical conclusions, differs
in the French legislation from regulations in other EU countries, including
Poland. Both the Directive and the Polish regulations are based on a negative
condition of the binding of such clause, saying that if a given provision is not
binding on a consumer due to its abusive character, than the remaining part
of a contract is binding on a consumer. The French legislation constructed
a provision based on a positive condition saying that all provisions of
a given contract are binding on a consumer, except for those which have been
found illegal by court100. This difference does not affect the difference in the
L.132-1 (5) „Sans préjudice des règles d’interprétation prévues aux articles 1156 à 1161, 1163 et 1164 du code civil, le
caractère abusif d’une clause s’apprécie en se référant, au moment de la conclusion du contrat, à toutes les circonstances
qui entourent sa conclusion, de même qu’à toutes les autres clauses du contrat. Il s’apprécie également au regard de
celles contenues dans un autre contrat lorsque la conclusion ou l’exécution de ces deux contrats dépendent juridiquement l’une de l’autre”; Article L.132-1 (5) „Without prejudice to the principles of interpretation stipulated in Articles
1156-1161, 1163 and 1164 of the Civil Code, the abusive (illegal) character of a given clause is determined for the moment
of concluding the agreement, with reference to all circumstances accompanying concluding it, as well as all other
clauses of the contract and o on the basis of clauses included in other contracts, when conclusion or execution of both
these contracts is legally co-dependent”.
98
L.132-1 (7) „L’appréciation du caractère abusif des clauses au sens du premier alinéa ne porte ni sur la définition de
l’objet principal du contrat ni sur l’adéquation du prix ou de la rémunération au bien vendu ou au service offert pour
autant que les clauses soient rédigées de façon claire et compréhensible”.; Article L.132-1 (7) „Finding a given clause illegal (abusive) in the understanding of section 1 does not refer to the definition of the main subject of agreement or to
the adequacy of price or amount of consideration for the sold commodity or provided service, as long as appropriate
clauses have been formulated in a clear and comprehensible way”.
99
L.133-2 “Les clauses des contrats proposés par les professionnels aux consommateurs ou aux non-professionnels
doivent être présentées et rédigées de façon claire et compréhensible. Elles s’interprètent en cas de doute dans le sens
le plus favorable au consommateur ou au non-professionnel. Le présent alinéa n’est toutefois pas applicable aux procédures engagées sur le fondement de l’article L. 421-6.” ; Article L.133-2 „Clauses of contracts proposed by professionals
(entrepreneurs) to non-professionals must be presented and formulated in a clear and comprehensible way. In case of
occurrence of doubts they will be interpreted to the advantage of a consumer or a non-professional. This Article applies
in the context of the procedure established in Article L.421-6”.
100
L.132-1 (8) „Le contrat restera applicable dans toutes ses dispositions autres que celles jugées abusives s’il peut subsister sans lesdites clauses”.; Article L.132-1 (8) „All provisions of a contract, except for those which are found illegal,
remain binding, as long as they can exist without the said excluded illegal clauses”.
97
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
effects of the abusiveness of a given clause, nonetheless it proves its own
separate character. Of course, also in this case the French legislator included a
restriction that non-abusive provisions of a contract remain binding, as long as
they can exist without the said excluded illegal clauses. Moreover, apart from
this provision, the French Act specifies the sanctions for finding a contractual
provision illegal which consists in “not having written” it or regarding it as
“void”. Article L.132-1 (6) says that illegal clauses are regarded as “not written”
[French: “non ecrite”]101. It is worth noticing that the Polish legislation has not
introduced a precise definition of sanctions, which was also the reason for
many disputes concerning their character and meaning. The view concerning
the sanction of nullity prevailed, however it remains a subject not free from
any doubts102. It is also worth paying attention to the regulation of Article 1341. This provision stipulates that an entity using a standard contract has the
obligation to make it available for everyone who has a legal interest in seeing
it103. The purpose of this provision is to protect consumers against the practice
of refusing to provide standard contracts before concluding contracts and
making it impossible to become familiar with the content of a signed contract
in appropriate time.
Particular attention ought to be paid to the mode of eliminating abusive
clauses in the French legislation. The legislator allows two modes in this
case. The first includes ad hoc controls of contractual provisions in a specific
case, through examining the occurrence of the abovementioned conditions
for abusiveness from Article L.132-1 (1). A list of provisions suspected of
abusiveness included in Annex mentioned in Article L. 132-1 (3)104 may be the
support available to consumers in such cases. The content of Annex exactly
reflects the one which is binding in our country and is based on the Directive
– the list included in Article 3853 of the Civil Code105. It ought to be noticed
at this point that this Annex has been transposed from the Directive to the
French order in its entirety, without making any modifications. At the same
time it contains a catalogue which not only serves as a guideline while issuing
judgements on the abusiveness of a given provision, but also constitutes
guidelines while issuing decrees determining types of abusive provisions. An
authorization to issue such decrees, according to Article L.132-1 (2), has been
L.132-1 (6) “Les clauses abusives sont réputées non écrites”.
Compare M. Skory, op. cit., Zakamycze 2005, page 193.
L.134-1 „Les professionnels vendeurs ou prestataires de services doivent remettre à toute personne intéressée qui en
fait la demande un exemplaire des conventions qu’ils proposent habituellement”.
104
L.132-1 (3) “Une annexe au présent code comprend une liste indicative et non exhaustive de clauses qui peuvent être
regardées comme abusives si elles satisfont aux conditions posées au premier alinéa. En cas de litige concernant un
contrat comportant une telle clause, le demandeur n’est pas dispensé d’apporter la preuve du caractère abusif de cette
clause”.; Article L.132-1 (3) “Annex to this Code containes a list indicating but providing all clauses which can be found
illegal (abusive), if they meet the criteria established in (1). In disputable matters concerning contracts containing such
clauses, the plaintiff is not exempt from the obligation to provide evidence that such clause is illegal”.
105
M. Skory, op cit., Zakamycze 2005, page 333.
101
102
103
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Regulation of illegal contract provisions in selected countries of the European Union
granted to a body established especially for this purpose – the Council of
State (Conseil d’Etat)106. This solution ought to be considered the right one, as
the Council of State as an authority with legislative competence – contrary to
purely judicial authorities – may interfere with the content of the applicable
law and issue standards of general and abstract nature. It is also a solution
which is more correct than this applied in Poland, as the competence to verify
standard contracts’ provisions in our country has been granted to the Court
of Competition and Consumer Protection, which, according to the recent
decision of the Supreme Court, issues judgements prohibiting to apply given
kinds of clauses with effects binding on all entities.
Another institution dealing with consumer protection against unfair
contractual terms in France is the Commission for Abusive Clauses (Commisions
des Clauses Abusives), whose activity is determined by Articles L.132-2,
3,4,5. The Commission acts ex officio or on the proposal of entitled persons,
i.e. the Minister of Consumer Protection, associations authorized to protect
consumers or interested professional entrepreneurs107. Its duty is to assess
standard contracts and to formulate precise recommendations concerning
them. The Commission may demand publishing these recommendations, but
without elements indicating the circumstances of a case which constituted
a base for issuing a recommendation108. Every year the Commission presents
a report on its activity, which is publicly available109. The Commission’s activity
exercises a significant influence on shaping the French jurisdiction concerning
consumer protection, as well as on shaping a pro-consumer policy110.
L.132-1 (2) „Des décrets en Conseil d’Etat, pris après avis de la commission instituée à l’article L. 132-2, peuvent déterminer des types de clauses qui doivent être regardées comme abusives au sens du premier alinéa.”; Article L.132-1 (2)
Decrees of the Council of State, issued after consulting a commission established under Article L.132-2, can determine
the kinds of clauses which should be found illegal in the understanding of (1).
106
L.132-3 „Elle peut être saisie à cet effet soit par le ministre chargé de la consommation, soit par les associations
agréées de défense des consommateurs, soit par les professionnels intéressés. Elle peut également se saisir d’office”.
108
L.132-4 „La commission recommande la suppression ou la modification des clauses qui présentent un caractère
abusif. Le ministre chargé de la consommation peut soit d’office, soit à la demande de la commission, rendre publiques
ces recommandations qui ne peuvent contenir aucune indication de nature à permettre l’identification de situations
individuelles”.
109
L.132-5 “La commission établit chaque année un rapport de son activité et propose éventuellement les modifications
législatives ou réglementaires qui lui paraissent souhaitables. Ce rapport est rendu public”.
110
Compare M. Skory, op cit., Zakamycze 2005, page 334: „The Commission for Abusive Clauses acting for the Ministry
and consisting of 13 members, among whom there are the chairperson (judicial officer), two judicial or administrative
officers or members of the Council of State, two specialists in the field of law or contract technique, four professionals’
representatives and four representatives of consumers (Article R. 132-3). (...) The Commission may express their opinion
in individual cases considered by courts, if deciding upon a matter depends on finding a clause abusive. In such cases
the court requests an opinion from the Commission, which ought to be submitted within three months. Until such opinion is submitted, the court cannot issue a judgement, although the Commission’s opinion is not binding on the court.
Although the Commission does not take any decisions directly, its role in protecting against illegal contract provisions
is very important, as it exercises influence on judgements and performs expert functions, as well as shapes consumer
policy. The Commission’s importance is confirmed by the fact that Court de Cassation (Court of Cassation) has become
used to asking its opinion on model contracts (while considering cases in which such model contracts occur), which
for a few years has been considered the Commission’s success. (...) In Poland there is no counterpart authority of Commisions des Clauses Abusives. Its functions are to be indirectly performed by the Office of Competition and Consumer
Protection, but due to not being equipped with appropriate rights, it is not able to perform a role as important as the
Commission. It seems that introducing a similar institution would considerably contribute to improving the function107
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
3.3. Jurisdiction concerning consumer protection and finding
the provisions of standard contracts illegal
When new technology services, commonly available for almost every citizen,
entered the market, together with mobile communications contracts signed in
masses, access to the Internet, cable and satellite television, not only undisputable
advantages appeared, but also risks in the form of minimizing the rights of
final recipients – consumers. Indulged by tempting offers, consumers are more
and more often aware of having their rights limited by illegal contractual
provisions and they use the help of institutions established for that purpose
or they bring proceedings to courts. The development of French jurisdiction in
cases concerning finding standard contracts illegal sped up in particular after
1998 when institutions dealing with consumer protection were also granted
the right to bring actions in this field. As the number of cases brought to French
courts increased, the role of the Commission for Abusive Clauses described
in the previous subparagraph also grew. As aforementioned, its duty is to
assess standard contracts and to formulate particular recommendations for
courts, as well as for entrepreneurs. Their number grows year by year, which
is confirmed by the fact that the number of consultations concerning abusive
clauses has grown forty (!) times from 2004111. As it is proved by the statistics
prepared by the Commission, the number of consultations in 2004 was 3 358,
a year later it exceeded 8 238 and in 2006 it amounted to 12 3187112. A great
importance of the Commission is also confirmed by the fact that French
courts have become used to requesting its opinion on standard contracts in
considered cases. In 2004 3 638 cases were consulted with the Commission
and in 2005 – 18 471 cases, while in 2006 the number of consultations shaping
jurisdiction was 149 155113. Recommendations issued by the Commission
considerably influence the shaping of pro-consumer policy in France. Many
institutions take the Commission’s opinions into account and judgements
issued by courts are compliant with recommendations concerning these cases.
The number of issued court judgements completing the group of judgements
based on recommendations in 2006 exceeded 365114. These recommendations
bear the traits of certain kind of principles which are observed by French
courts and which can be compared with Polish legal principles of the Supreme
Court. They do not constitute binding interpretations, but similarly to Poland,
ing of applicable legal provisions”.
Information from the webpage: http://www.clauses-abusives.fr/ - reference to the News of 12/01/07 - Les statistiques de
consultation du site pour 2006 - Rubriques Consultees ” on the webpage http://www.clauses-abusives.fr/stat/index.htm.
112
As above.
113
As above.
114
Information from the webpage http://www.clauses-abusives.fr/ - reference to the News of 12/01/07 - Les statistiques de
consultation du site pour 2006 - Modifications de l’année” on the webpage http://www.clauses-abusives.fr/stat/index.htm.
111
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Regulation of illegal contract provisions in selected countries of the European Union
their importance, due to being issued by experts, is very important for a court
issuing a query. It is worth mentioning the sentence of the Cassation Court
(the First Civil Chamber) of 13 November 1996, confirming a purely advisory
and non-binding nature of these recommendations: ‘Recommendations
formulated by the Commission for Abusive Clauses do not constitute
principles, noncompliance with which would enable issuing an appeal.’ This
thesis in comparison with the actual meaning of these principles undoubtedly
confirms a significant role and regard of the activity of the Commission for
Abusive Clauses in France.
The French jurisdiction disposes over a vast amount of judgements which
found illegal the provisions of standard contracts concerning new technology
services. Such services are featured by their global scope, which often means
a disadvantage for consumers’ interest. It is visible mainly in the example of
the provision of mobile communication or Internet services, when operators
insert into offered contracts provisions which distort the nature and application
of provided services or entirely change the nature of service into something
that consumers did not order. An accurate example of such procedure is the
judgement of Tribunal De Grande Instance De Nanterre (the High Court in
Nanterre) of 3 March 2006, which states illegality of the following clauses of
a subscribers’ contract concerning an unlimited access to the Internet, saying
that a client ‘acknowledges and agrees that – due to reasons dependent on the
functioning of network and due to the necessity to protect client’s particulars – [the
operator] reserves the right, without being liable for any compensation for the client, to
cut active or inactive connection at any moment’ or that ‘clients will be able to use the
service of Internet access, with the reservation of breaks resulting from the operation
of network or serving the purpose of protecting client’s particulars’. The court’s
justification of this statement was that when the operator obliges themselves
to provide unlimited Internet assess to consumers, they have an obligation
to provide this service (otherwise this would not be the service of unlimited
access), of which they can be released only in cases of force majeure. Moreover,
the discussed clause does not define time or the number of breaks which – with
no compensation – a customer would have to deal with when the connection
is broken, while his obligations remain unchanged. The court also objected to
the fact that the contract did not stipulate the necessity to inform consumers
about the cause and length of potential breaks in Internet access. Another
instance of enabling an entrepreneur to unilaterally change the content of
a contract and moreover to interfere with (without a precise definition of this
interference) decisions concerning the kind of provided services in a contract
for the provision of electronic postal services is the judgement of Tribunal De
Grande Instance De Paris (the High Court in Paris) of 5 April 2005 on a clause
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
reserving an entrepreneur’s right to remove a mail box and its content in case
of a lasting lack of activity in frames of a subscription and a clause entitling an
entrepreneur not to deliver or to withhold an electronic message. In the first
case, the Court decided that the clause reserving an entrepreneur’s right to
remove a mail box and its content in case of a lasting lack of activity in frames
of a subscription is illegal, as it allows to unilaterally change characteristic
features of an ordered service“ex officio” and without a warning. The clause
entitling an entrepreneur not to deliver or to withhold an electronic message,
whose size, content or number of recipients could negatively affect the general
quality of service offered to users, is illegal. It is such, as – in circumstances
when it is not precise in terms of mere quality of messages which could be
rejected, in terms of the number of recipients, as well as in terms of general
quality of service – it entitles an entrepreneur to make unilateral interpretation
of such quality. The latter case resembles the so-called anti-spam policy which
is already known to consumers. As far as advantages of using such software
cannot be denied, the precision of choosing e-mails and automatic classifying
e-mails as spam raise considerable objections.
Interference with consumers’ rights is also visible in relation to other
commonly available and transborder services – mobile communications. In
the judgement of Tribunal De Grande Instance De Nanterre (the High Court in
Nanterre) of 17 March 1999 the court decided that the possibility to introduce
changes to clients’ telephone numbers freely available to an entrepreneur,
without previous notifying consumers, which would enable them to inform
other users and without compensation and guaranteeing a fixed stem of
a number, introduces – to the detriment of a consumer – is a principle seriously
infringing their interest and has traits of abuse. Due to this fact, the court
decided that the above clause is considered void, according to Article L.132-1
(6) of the Consumer Code115. A unilateral change in the content of a contract
was also the subject of a judgement issued virtually at the same time by the
Court of First Instance on 16 March 1999. The court decided on the illegality of
the following clause: ‘Bills will be issued every month. However, the Sagem company
reserves the right to change the above date by notifying clients and to issue temporary
bills’. By virtue of the above clause, the Sagem Company was entitled to
unilaterally change contractual clauses concerning issuing bills without prior
consent given by customers, which would cause a situation when consumers
would not be able to determine approximate costs of service, which would put
then in a highly disadvantageous situation. In consequence, the court ordered
to remove this clause from standard contracts concluded with consumers of
LOI no 93-949 du 26 juillet 1993 relative au code de la consommation; L.132-1 (6) “Les clauses abusives sont réputées
non écrites”.
115
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Regulation of illegal contract provisions in selected countries of the European Union
the telecommunications company116. At this point, it is also worth quoting
another judgement questioning contractual provisions commonly applied
by entrepreneurs, which regard consumers’ silence as consent to change the
provisions of a contract or to extend it. Tribunal D’Instance De Rennes (the
Court of Instance in Rennes) decided in the judgement of 7 June 2001 that lack
of statement on the part of a consumer does not mean their consent to new
contractual provisions. The case concerned clauses which say that a consumer
has only one month, calculated from the date of receiving the last invoice,
to refuse to sign another contract. The court ordered to regard such clauses
as illegal. Particular attention ought to be paid to the fact that in the above
judgement the court quoted recommendations no. 94-01 formulated by the
Commission for Abusive Clauses and concerning clauses about constructive
consent117 and recommendations no. 99-02 on mobile telephones118. An analysis
of other instances of the occurrence of illegal clauses in contracts concerning
land or mobile telephony allows to notice that some provisions were previously
subject to particular controls carried out by French courts. It concerns
mostly contractual provisions which give entrepreneurs disproportionate
advantages as compared to the other party of a contract and put consumers
in a considerably worse position, as well as they determine contract term and
conditions for obliging a user with contractual provisions and conditions for
making subscription payments. Tribunal De Grande Instance De Nanterre
(the High Court in Nanterre) decided in a judgement of 10 September 2003 that
the introduced prohibition to terminate a contract concluded for an indefinite
time period (with simultaneous indication of situations which may constitute
a justified reason for termination) within the “primary period of 12 months”
makes the clause illegal and the above words should be removed from it. On
the other hand, Cour D’Appel De Versailles (the Court of Appeal in Versailles)
decided in a judgement of 4 February 2004 about the illegality of joining clauses
enumerating situations in which terminating a contract is possible without
compensation, which deprives users of the possibility to terminate a contract
for reasons different than those which have been enumerated and which
could be considered justified by a judicial body. Entrepreneurs cannot be a
body deciding whether the reason given by a user who wishes to terminate a
contract is justified. Making the possibility to terminate a contract dependent
on the payment of a full amount of yearly license fee was questioned by
Tribunal D’Instance De Rouen (Court of Instance in Rouen) in a judgement
Ed. E. Łętowska, Nieuczciwe klauzule w prawie umów konsumenckich, Publishing house: C.H. Beck, Warsaw 2004,
page 593.
117
Recommandation n°94-01 concernant les clauses dites de consentement implicite (BOCCRF du 27/09/1994); source:
http://www.clauses-abusives.fr/recom/index.htm.
118
Recommandation n°99-02 relative aux contrats de radiotéléphones portables (BOCCRF du 27/07/1999); source: http://
www.clauses-abusives.fr/recom/index.htm.
116
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
of 27 June 2000. The clause saying that license fee is valid throughout an
invariable and irrevocable period equal to the term of a contract and that
it is not possible to terminate a contract by a consumer unless they pay the
whole license fee was found illegal in a sense that it enables entrepreneurs
to collect license fee without providing any equivalent service in return. The
unilateral benefit of an entrepreneur in the above clauses was questioned,
as it resulted in a significant imbalance in rights and obligations ascribed to
particular parties. As it was mentioned in the previous chapter, this significant
imbalance constitutes one of the premises to state the abusiveness of standard
contracts governed by the provisions of Article L-132-1119 of the Consumer
Code. On the basis of this premise, Tribunal De Grande Instance De Grenoble
(the High Court in Grenoble) also stated in the judgement of 7 September 2000
the faultiness of a provision saying that an entrepreneur will not be liable
for disturbances [in communication] caused by works, in particular works
related to conservation, maintenance, reinforcement, cross-sectioning and
development of network applications, which are the limit of their obligations
concerning applied means. The entrepreneur does not differentiate between
events resulting from normal risks concerning constant character of provided
service (for instance, disturbances coming from external network, instances of
force majeure etc.) and events resulting from their own rights and dependant
on a unilateral decision. Formulating the above clause in such way that it
seems to treat all these circumstances equally with instances of force majeure
is of an illegal nature. It is contradictory to the provisions of Article L.132-1 of
the Consumer Code, as it results in granting advantages to the entrepreneur
which cannot be justified. Moreover, it is contradictory to the provisions of
Article R.132-1 of this Code, as it results in infringing users’ rights to receive
compensation in cases when an entrepreneur does not meet their obligations.
A contractual term creating a situation seriously infringing the balance of
rights and obligations of contractual parties was also the subject of a judgement
of 26 April 2001. Tribunal D’instance De Toulouse (the Court of Instance in
Toulouse) which stated the illegality of a clause included in a contract for the
provision of mobile communications service, which enabled an entrepreneur
to demand that a consumer submits a margin within the contract term, as
a security for amounts potentially unpaid in the future. The court decided
that such obligation creates a situation seriously infringing the balance of
rights and obligations of contractual parties, as the consumer is forced to
pay a considerable amount which is different from an average amount on a
telephone invoice and is established unilaterally by the entrepreneur. Tribunal
L.132-1 (1) “Dans les contrats conclus entre professionnels et non-professionnels ou consommateurs, sont abusives
les clauses qui ont pour objet ou pour effet de créer, au détriment du non-professionnel ou du consommateur, un déséquilibre significatif entre les droits et obligations des parties au contrat”.
119
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Regulation of illegal contract provisions in selected countries of the European Union
D’instance De Paris 11ème (the Court of Instance in Paris – District 11) issued
a similar judgement four years later on 24 February 2004. The court decided
that the clause enabling an entrepreneur to continue to collect payments, even
when there is a break in providing service, is undoubtedly an illegal clause in
a sense that it awards financial profits for which there is no equivalent service
performed, which is an element characteristic of the condition of a significant
imbalance between the rights of contractual parties.
Uneven distribution of rights and obligations resulting from a legal relation
and significant detriment to a consumer related to it are to be seen also in other
industries, including the provision of the services of electrical energy, gas and
water. The Court of Appeal decided in a judgement of 30 March 1999 that the
following clause is unacceptable: ‘A customer is responsible for a due maintenance
of electricity connection and they assume responsibility for all fires that may occur on
their estate which they own or rent, regardless of the cause of such fire and without
the possibility to lodge claims to an energy company’. In the justification the court
mentioned that the energy company is a local monopolist and consumers do
not have any choice. Excluding liability by this clause makes the professional
party receive privileges at the expense of consumers’ interest. Due to this fact,
the court stated its illegality120. In another judgement of 10 May 2000 Cour
d’Appel De Pau (the Court of Appeal in Pau) decided that a clause stating
that recipients are not entitled to demand a reduction of the amount of used
water due to leakages found in internal plumbing is illegal. The position of
a water supplier in this case was found unauthorized, as they justified the
legitimacy of this clause claiming that consumers have the alleged possibility
to personally control the amount of water used on their water-meters at any
moment. The choice of a place to install water-meters was left to the water and
plumbing company and the water recipients’ obligation to control readings
on water-meters turned out to be impossible to meet, as water-meters were
located in large distance and reaching them would require excessive efforts. It
ought to be noticed that also in this case the court observed the principle of a
significant imbalance of rights and obligations of contractual parties.
Judgements with the subject of a significant imbalance of rights and
obligations ascribed to specific contractual parties also concerned financial
services in broadest sense. Particular attention ought to be paid to a judgement
of Tribunal D’instance De Saint Etienne (the Court of Instance in Saint Etienne)
of 19 March 1996121. It evokes an issue interesting not only for the analysis
of abusive clauses, but also for an institution of compensation for emotional
damages which is neglected and basically not observed by the Polish law
and which does not concern damages done to a person. The court stated in
E. Łętowska, op. cit., Publishing House C.H. Beck, Warsaw 2004, page 612.
Source: http://www.clauses-abusives.fr/juris/tise190396f.htm.
120
121
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
its judgement that the clause excluding compensation from the bank for any
non-financial damage or moral damages in the contract concerning the bank’s
safe is illegal. According to the presented facts of a case, the bank’s cellar
with safes was waterlogged and persons renting deposit boxes demanded
compensation for incurred losses. The bank decided to cover material losses,
but – referring to the above clause – they refused to cover non-financial losses
resulting from the destruction of documents and goods such as diplomas,
granted titles, family photographs, letters etc.122. The court requested the
Commission for Abusive Clauses to issue recommendation concerning this
matter123 and based the judgement on this recommendation: ‘It is clear that an
object deposited in a safe box in a bank could have been of an insignificant
material value, but of great emotional value, which is why the bank could
not exclude compensation for non-financial or emotional damages without
paying attention to the balance of rights and obligations between parties to
the contract concerning renting a safe deposit box’. Attention ought to be paid
also to other judgements in the field of finance and banking, which refer not
only to the imbalance of rights and obligations of contractual parties, but
they also concern another kind of clauses on the grounds of additional legal
basis of the Monetary and Financial Code124. Reference is made to provisions
which are misleading or change general economics of a contract. Therefore,
Tribunal De Grande Instance De Paris (the High Court in Paris) stated in its
judgement of 9 November 2005 that in a situation when Article L.131-71 of
the Monetary and Financial Code125 obliges a bank to justify every decision
concerning providing cheque-books to customers, a clause inserted in a
contract concerning maintaining a bank account in which issuing a chequebook depends on bank’s consent can be misleading for customers. Misleading
occurs, as there is no information in the clause saying that the above decision
ought to be justified. However, Tribunal De Grande Instance De Paris (the
High Court in Paris) stated in a judgement of 25 October 1989 that inserting a
new column called “closing an account” and meant for invoicing the costs of
Compare E. Łętowska, op cit., Publishing House C.H. Beck, Warsaw 2004, page 326.
Commission for Abusive Clauses prepared a statement concerning this matter - Avis n° 95-02 relatif ŕ la responsabilité en cas
de perte ou de détérioration de documents ou objets contenus dans un coffre fort (BOCCRF du 6/07/1996), source: http://www.
clauses-abusives.fr/avis/95a02.htm, and a recommendation - Recommandation n°87-01 relative aux contrats de location de coffres-forts (BOCCRF du 20/03/1987), source: http://www.clauses-abusives.fr/recom/87r01.htm.
124
Code monétaire et financier Partie Legislative Annexe ŕ l’ordonnance 2000-1223 du 14/12/2000; source: http://admi.
net/jo/codemonetaire.html.
125
Art. L. 131-71. - Tout banquier peut, par décision motivée, refuser de délivrer au titulaire d’un compte les formules
de chčques autres que celles qui sont remises pour un retrait de fonds par le tireur auprčs du tiré ou pour une certification. Il peut, ŕ tout moment, demander la restitution des formules antérieurement délivrées. Cette restitution doit ętre
demandée lors de la clôture du compte. Lorsqu’il en est délivré, les formules de chčques sont mises gratuitement ŕ la
disposition du titulaire du compte. Il peut ętre délivré des formules de chčques barrées d’avance et rendues, par une
mention expresse du banquier, non transmissibles par voie d’endossement, sauf au profit d’un établissement de crédit
ou d’un établissement assimilé. L’administration des impôts peut obtenir ŕ tout moment, sur sa demande, communication de l’identité des personnes auxquelles sont délivrées des formules ne répondant pas ŕ ces caractéristiques ainsi que
le numéro de ces formules. Les formules de chčques mentionnent le numéro de téléphone de la succursale ou agence
bancaire auprčs de laquelle le chčque est payable. Elles mentionnent également l’adresse du titulaire du compte.
122
123
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Regulation of illegal contract provisions in selected countries of the European Union
bank account management of some customers is a modification in a present
contract, a modification requiring an explicit consent of a consumer. It is an
illegal clause in a sense that it changes the general economics of a contract and
it is contradictory to a contractual principle that parties should act in good
faith. However, courts do not always decide to the favour of consumers. An
instance of not finding a clause illegal is a judgement of the Court of Appeal
in Paris, in which the court stated compliance with legal provisions of a clause
saying that the owner of a cash-maschine card is entirely responsible for every
operation of withdrawing savings, including choosing the PIN number, which
takes place before notifying a bank in order to block withdrawals. The facts
of a case concerned the situation of an owner of a card who blocked it when
they noticed its disappearance and a bank charged them with withdrawals
made before reporting the demand to block the card. The court decided in
the justification that the presumption created in the clause and concerning
the responsibility of the card’s owner in case of using a card before reporting
the demand to block the card is compliant with law. This presumption may
be invalidated only through providing counterevidence to the fact that an
improper use of a card taking place before the bank is notified126.
The French jurisdiction, as it is proved by the above judgements, tries
to definitely prohibit typical abuses on the part of professionals, such as
significant imbalance of rights of the parties, distorting the principles of good
faith and economics of a contract, excessive interference with the decisions
of consumers, imposing one interpretation of a contract or the possibility to
modify it unilaterally by a professional. On the other hand, having particular
regard to the latter quoted judgement, French courts do not allow to forget
that consumer contracts are still contracts in which the principle of free
formulation of rights and obligations is binding. For this reason, no additional
obligations can be imposed on entrepreneurs under the pretext of protecting
consumers, which would exceed the scope resulting from concluded contracts
or significantly vary from it127. Interest of both entrepreneurs and consumers
should be balanced equally with the only difference that the principles of
professional trade should be applied to one of the parties.
3.4. Comparing the French and Polish transposition
Analysis of the transposition of the Directive 93/13 to the French legal
system proves to be advantageous and very positive. The French legislator did
not stray significantly from the guidelines and stipulations of the European
Compare E. Łętowska, op cit., Publishing House C.H. Beck, Warsaw 2004, page 303.
126
Compare E. Łętowska, op. cit., Publishing House C.H. Beck, Warsaw 2004, page 248.
127
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
act and moreover, they introduced regulations which define and eliminate
potential doubts which may occur in the context of the assessment of
abusiveness of contractual provisions and their consequences. For this reason,
the French transposition should be considered one of those performed in the
best way and one which creates real possibilities to protect consumers against
illegal contractual terms.
While comparing particular elements of the French and Polish transpositions,
particular attention ought to be paid to the subject scope of French regulation,
which is broader than in Poland. Apart from natural persons entering into
transactions for purposes not concerning performed economic activity, also
other entities are protected in France, including entities running economic
activity, as long as they act as non-professionals in a given legal relation. Such
solution is fully compliant with the Union’s Directive which says explicitly
that not only consumers are natural persons, but also every entity which acts
as layman.
A significant element of the French regulation is also lack of a subjective
criterion of good faith for the assessment of abusiveness of contractual clauses.
Such solution should be considered positive, although the French legislator
decided to apply a regulation different from the one which was suggested in
the Directive 93/13. It is worth emphasizing that in judicial practice there are
difficulties stating whether action or renunciation took place in good or in
bad faith. Neglecting this precious element allows to carry out an assessment
based on fully objective criteria of disadvantage and significant imbalance in
legal relation.
It ought to be emphasized that the French regulation, contrary to other
European transpositions (including the Polish one) relies on a positive criterion
for stating the abusiveness of a single contractual clause. This means that all
clauses in a contract concluded with consumers are binding for them, apart
from those which are found illegal (abusive). This difference, which may seem
minor at first glance, maintains the validity of the whole contact with the
exception of particular clauses, while the effects are binding only when the
judgement finding certain clauses unfair enters into force.
It is also worth paying attention to the effect of the abusiveness of contractual
clauses, which is seemingly different than in the Polish law. As indicated above,
stating abusiveness of a contractual clause has an effect which is clearly set out
in the French act, namely this of a clause being “not written” or “not restricted”.
Formulating this more colloquially, the act finds a clause void, as if the parties
have not included it in a contract, clearly indicating that effects occur ex tunc,
which means they occur from the beginning. It is a solution more clear than
in the Polish transposition. The effect of “non-binding” stipulated in Article
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Regulation of illegal contract provisions in selected countries of the European Union
3851 § 2 of the Polish Civil Code is a mere legal neologism caused by a wrong
translation from the original text of the Directive. In the Polish doctrine of civil
law there is no effect of “not binding”. It ought to be postulated, de lege ferenda,
that amendments to the code fix this minor fault, introducing the effect of
invalidity of a provision or, as it has been done in the French regulation, they
find an abusive clause non-restricted with an ex tunc effect.
Introducing decrees of the Council of State indicating particular contractual
clauses found abusive by competent bodies is a novelty in the context of other
European regulations. It is a solution which is actually similar to the Register of
Abusive Clauses published by the Polish Office of Competition and Consumer
Protection128.
To sum up, the French transposition is one of the most precise regulations
in the field of consumer protection in Europe. Solutions applied in the French
legislation, although they sometimes differ from Union’s models, deserve a
full credit and should be implemented in remaining countries of the united
Europe.
4.
The Czech Republic
4.1. Sources of law
The Czechoslovakian Civil Code129 resolved in 1964 did not contain any
particular regulation concerning the applying of abusive clauses or separate
provisions governing consumer protection. Also the Act on the protection
of consumer rights130 adopted in 1992 before the break-up of the Republic of
Czechoslovakia, which was consequently developed by the legislative bodies
of the Czech Republic and Slovakia (after dividing the country in 1993) did
Resolution of the Supreme Court of 13 July 2006 (III SZP 3/06).
Zákon č. 40/1964 Sb., občanský zákoník Datum přijetí: 26.února 1964; Datum účinnosti: 1. dubna 1964; Ve znění:
zákona č. 58/1969 Sb., zákona č. 131/1982 Sb., zákona č. 94/1988 Sb., zákona č. 188/1988 Sb., zákona č. 87/1990 Sb., zákona
č. 105/1990 Sb., zákona č. 116/1990 Sb., zákona č. 87/1991 Sb., zákona č. 509/1991 Sb., zákona č. 264/1992 Sb., zákona č.
267/1994 Sb., zákona č. 104/1995 Sb., zákona č. 118/1995 Sb., zákona č. 94/1996 Sb., zákona č. 89/1996 Sb., zákona č. 227/1997
Sb., zákona č. 91/1998 Sb., zákona č. 165/1998 Sb., zákona č. 159/1999 Sb., zákona č. 363/1999 Sb., zákona č. 27/2000 Sb.,
zákona č. 103/2000 Sb., zákona č. 227/2000 Sb., zákona č. 367/2000 Sb., zákona č. 229/2001 Sb., zákona č. 317/2001 Sb.,
zákona č. 501/2001 Sb., zákona č. 125/2002 Sb., zákona č. 135/2002 Sb., zákona č. 136/2002 Sb., zákona č. 320/2002 Sb.,
nálezu Ústavního soudu vyhlášeného pod č. 476/2002 Sb., (Ruší novelu 501/2001 Sb. v celém rozsahu.) zákona č. 88/2003
Sb. (Náhrada za zrušenou novelu 501/2001 Sb.), zákona č. 37/2004 Sb. zákona č. 47/2004 Sb., nálezu Ústavního soudu
vyhlášeného pod č. 278/2004 Sb., zákona č. 480/2004 Sb., zákona č. 554/2004 Sb., zákona č. 359/2005 Sb. (účinnost od 1.
října 2005), zákona č. 56/2006 Sb. (účinnost od 8. března 2006), zákona č. 57/2006 Sb. (účinnost od 1. dubna 2006), zákona
č. 107/2006 Sb. (účinnost od 31. března 2006), zákona č. 115/2006 Sb. (účinnost od 1. července 2006), zákona č. 160/2006 Sb.
(účinnost od 27. dubna 2006), zákona č. 264/2006 Sb. (účinnost od 1. ledna 2007; části od 1. ledna 2008), zákona č. 315/2006
Sb. (účinnost od 1. září 2006), zákona č. 443/2006 Sb. (účinnost od 18. září 2006).
130
Zákon č. 634/1992 Sb., o ochraně spotřebitele Ve znění: zákona č. 217/1993 Sb., zákona č. 40/1995 Sb., zákona č. 104/1995
Sb., zákona č. 110/1997 Sb., zákona č. 356/1999 Sb.,zákona č. 64/2000 Sb., zákona č. 145/2000 Sb., zákona č. 64/2000 Sb.,
zákona č. 258/2000 Sb., zákona č. 102/2001 Sb., zákona č. 452/2001 Sb., zákona č. 151/2002 Sb., zákona č. 320/2002 Sb.,
zákona č. 227/2003 Sb.,zákona č. 277/2003 Sb., zákona č. 439/2003 Sb., zákona č. 119/2004 Sb., zákona č. 186/2004 Sb., zákona č. 217/2004 Sb., zákona č. 444/2005 Sb. (účinnost od 1.1.2006), zákona č. 214/2006 Sb. (účinnost od 1.8.2006), zákona č.
229/2006 Sb. (účinnost od 29.5.2006).
128
129
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
not and still does not contain any particular provisions concerning the control
over contractual clauses in the Czech Republic. This Act only defines the
obligations to inform consumers, prohibitions concerning discriminating and
misleading advertisements, as well as obligations concerning sales of products
and provision of services and principles of cooperation and rights to which
organizations created to protect consumers are entitled.
The Czech legislator carried out a full transposition of the Directive 93/13
only in 2000 with the Act 367/2000 introducing amendments to the Czech
Civil Code. Even a superficial analysis allows to formulate a statement that
the Czech legislator implemented the Directive in a literal way, including its
provisions in Articles 52, 55 and 56 of the Civil Code. It is worth emphasizing,
that the performed transposition is of a temporary nature and the government
of the Czech Republic is already working on an amendment to the provisions
concerning illegal contractual terms131.
4.2. Analysis of the transposition of the 93/13 Directive to the Czech legal
system
Basic terms
While analyzing the Directive transposition by the Czech legislator,
attention ought to be paid in particular to differences in defining “a consumer”.
§ 52 (3) of the Czech Civil Code namely says that a consumer is a person who does not
act in frames of their commercial activity or another kind of economic activity while
concluding and executing a contract132. Contrary to the Directive, the definition
of a consumer does not refer only to natural persons, but also includes legal
persons and other entities which do not have legal personality and which enter
into transactions for purposes not concerning economic activity performed by
these entities. The subject definition in this scope refers to solutions included
in the French legislation, including the so-called professional – layman trade.
It is also worth paying attention to the definition of “a supplier” (§ 52 (2) of
the Czech Civil Code)133, which, contrary to the European regulation, does not
contain an element of reference to the public and private sector of economy. It
ought to be accepted however, that this limitation does not affect the scope of
application of the term “supplier”, as the Directive itself is not consequent in
this respect. It says that a supplier is supposed to act within their enterprise,
so defining whether it is an enterprise of public or private sector seems to be
According to the information obtained from Lucie Wachtlová - the director of the European Consumer Centre
Prague by the Ministry of Industry and Trade.
132
§ 52 (3) of the Czech Civil Code says: (3) Spotřebitelem je osoba, která při uzavírání a plněnísmlouvy nejedná v rámci
své obchodní nebo jiné podnikatelskéčinnosti.
133
§ 52 (2) of the Czech Civil Code says: (2) Dodavatelem je osoba, která při uzavírání a plněnísmlouvy jedná v rámci
své obchodní nebo jiné podnikatelskéčinnosti.
131
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Regulation of illegal contract provisions in selected countries of the European Union
useless. It is important that the definition included in the Directive aims at
including widest possible group of entities to the concept of a supplier, which
has undoubtedly been achieved by the Czech legislator.
Standard contracts and unfair contractual clauses
Contrary to the Directive, the Czech legislator settled the problem of
applying the so-called standard contracts. Article 3(1) of the Directive stipulates
that 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 consumer134. The Czech legislator does not use the term “contractual terms
individually negotiated” in the civil code, which is a key term in the European
regulation, as it allows to settle abusive clauses inserted in standard contracts.
No regulation concerning contract standards in the Czech Civil Code causes a
situation in which the assessment of the compliance of standard contracts with
the EU law, including the Directive 93/13, will be carried out each time by a
competent court on the basis of a general clause included in § 56 of the Czech
Civil Code. Such regulation ought to be considered compliant with the EU law,
all the more that a similar regulation is present i.a. in the legislation of Belgium,
France, Luxembourg and in the legislation of the Nordic countries. On the
other hand, lack of such regulation may cause a different interpretation of the
same standard contracts and consequently uneven treatment of the subjects of
economic trade. Having regard to this fact, the Czech legislator is preparing
modifications aiming at regulation of the assessment of abusiveness of clauses
included in commonly applied standard contracts. The regulation which is
being prepared is admittedly at the stage of government preparations, but the
information coming from the Ministry of Economy135 allows to formulate a
statement that the amendment will introduce, according to the suggestions
of the Czech civil law doctrine, a uniform regulation concerning standard
contracts. Finishing works on the amendments is planned on the turn of June
and July 2007136.
While implementing Article 3 (1) of the Directive, the Czech legislator
transposed the term “unfair contract terms” almost literally, stipulating in §
56 (1) of the Czech Civil Code that consumer contracts cannot contain terms which,
being contrary to the principles of good faith, cause a significant imbalance in rights
and obligations to the detriment of a consumer137. Therefore the legislator, who
Article 3(1) of the Directive says: 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.
134
Ministerstvo Ekonomická.
According to the information obtained from the Ministry of Economy.
137
§ 56 (1) CKC says: Spotřebitelské smlouvy nesmějí obsahovat ujednání, kteráv rozporu s požadavkem dobré víry znamenají k
újmě spotřebiteleznačnou nerovnováhu v právech a povinnostech stran.
135
136
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
evaded introducing the so-called standard contracts to the Czech Civil Code,
implemented Article 3(1) of the Directive, granting protection to consumers in
any case, when contract provisions are noncompliant with the requirements
of bonae fidei and limit consumers’ rights or limit the scope of entrepreneurs’
liability.
Similarly to the Directive, the Czech legislator decided in § 56 (2) of the Czech
Civil Code that the following terms should not be found unfair: (terms) which
determine the subject of a contract or its price138. In order to remind the reader, the
Union’s regulation stipulates that assessment of the unfair nature of the terms shall
relate neither to the definition of the main subject 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 matter139.
While analyzing the provisions of the Czech Code, it can be concluded that the
legislator made a literal transposition, but they did not make allowance for
the Directive’s postulate to formulate terms concerning the subject and price
of the contract in plain and intelligible matter. The content of § 56 (2) of the
Czech Civil Code which does not contain the requirement to formulate the socalled essentialia negotti in a plain and intelligible way for an average consumer
may cause a situation in which the meaning of such provision will be small
and in particular it may cause a situation in which entrepreneurs will begin
to commonly abuse it in order to circumvent the prohibition to insert unfair
contractual clauses into contracts.
Similar objections have to be raised concerning the provisions of § 55 (3)
of the Czech Civil Code. This provision, being partly a literal transposition of
Article 5 of the Directive, stipulates that in case of occurrence of doubts concerning
the content of consumer contracts, the interpretation in favour of a consumer is
binding140. It ought to be emphasized that also in the case of transposing this
provision, the Czech legislator did not make allowance for the postulate to
formulate consumer contracts in a plain and intelligible language. The Directive
requires in particular that 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
language141. Lack of regulation concerning the principles of formulating
consumer contracts may be considered an incomplete transposition of the
Directive. Introducing a complete transposition of Article 5 of the Directive
§ 56 (2) CKC says: Ustanovení odstavce 1 se nevztahuje na smluvní ujednání,která vymezují předmět plnění smlouvy nebo cenu
plnění.
139
Article 4 (2) of the Directive stipulates: Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject 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 matter.
140
§ 55 (3) CKC says: V pochybnostech o významu spotřebitelských smluv platí výklad pro spotřebitele příznivějš.í.
141
Article 5 of the Directive says: 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).
138
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Regulation of illegal contract provisions in selected countries of the European Union
to the Czech regulation, according to the provisions of the doctrine, is to be
carried out in the project of amending consumer law prepared by the Czech
government.
The transposition of Article 6 (1)142 of the Directive has to be assessed
positively. The article concerns the exclusion from a contract concluded with
a consumer of particular provisions which are found illegal, without making
the whole contract invalid. The Czech legislator decided namely that unfair
contract terms cease to be binding when a consumer pleads their invalidity,
however, if a particular provision affects the remaining provisions of a contract, a
consumer may plead invalidity of the whole contract (§ 55 ( 2) sentence 2 of the Czech
Civil Code143). Article 6 (2)144 of the Directive has also been implemented with
the objective and spirit of the European regulation preserved. The Czech
legislator decided in § 55 (1) of the Czech Civil Code that the provisions of
contracts concluded with consumers cannot vary from those stipulated by law to the
detriment of a consumer. In particular, a consumer cannot waive rights granted to them
under the law, or otherwise deteriorate their position in a contract145. The quoted
regulation included in the Czech Civil Code is somewhat more restrictive than
the one adopted in the Union’s Directive, due to a more precise determining
that a consumer cannot waive rights which they are granted under the law.
The Directive stipulates only that Member States shall take the necessary measures
to ensure that the consumer does not lose the protection granted by the Directive. Thus,
according to the will of the European legislator, the Czech legislator formulated the legal
principle stipulated by Article 6 (2) of the Directive146 more precisely, which should
be assessed positively.
The process part of the Directive, as well as the part referring to the
international private law, was included in Articles 64147 and 65148 of the Czech
Article 6 (1) of the Directive says: 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.
142
§ 55 ( 2) of the Czech Civil Code says: Ujednání ve spotřebitelských smlouvách ve smyslu § 56 se považují za platná,
pokud se spotřebitel nedovolá jejich neplatnosti (§ 40a). Ovlivňuje-li však takové ujednání přímo i další ujednání smlouvy, může se
spotřebitel dovolat neplatnosti celé smlouvy.
144
Article 6 (2) of the Directive says: 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.
145
55 (1) of the Czech Civil Code says: Smluvní ujednání spotřebitelských smluv se nemohou odchýlit od zákona v neprospěch
spotřebitele. Spotřebitel se zejména nemůže vzdát práv, které mu zákon poskytuje, nebo jinak zhoršit své smluvní postavení.
146
Article 6 (2) of the Directive says: 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.
147
§ 64 of the Czech Civil Code says: (1) Spotřebitel nesmí být zbaven ochrany dle předchozích ustanovení bez ohledu na právo,
kterým se smluvní vztah řídí, pokud se budova či její část nachází na území České republiky nebo má-li spotřebitel trvalý pobyt v
České republice. (2) Stejná ochrana náleží spotřebiteli v případech, kdy se budova nebo její část nachází na území členského státu
Evropské unie.
148
§ 65 of the Czech Civil Code says: Má-li spotřebitel trvalý pobyt mimo území České republiky v některém z členských států
Evropské unie nebo je jeho státním příslušníkem, musí být smlouva vyhotovena rovněž v jazyce či jednom z jazyků tohoto členského
státu. Výběr jazyka v tomto případě náleží spotřebiteli. Poskytovatel je povinen v takovém případě předat spotřebiteli úřední překlad
smlouvy v jazyce či v jednom z jazyků členského státu Evropské unie, v němž se budova či její část nachází.
143
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Civil Code. These regulations constitute a virtually literal transposition of the
Directive, not deviating from standards of process protection of consumers
generally accepted in Europe.
Analysis of the transposition of particular clauses considered abusive
Particular abusive clauses described in Annex 1 to the Directive have been
implemented to the Czech Civil Code in § 56 (3)(a)-(k). It can already be stated
prima facie that the Czech legislator omitted in the transposition process six
out of seventeen clauses which the European legislator found unfair and
inapplicable in contracts concluded with consumers. Moreover, three clauses
have been implemented in a way which differed from the one adopted in
the Directive. To sum up, eight out of seventeen unfair contract provisions
mentioned in the Directive have been implemented literally. These are the
clauses marked in the Directive with letters: a, c, g, i, j, l and p. Clauses marked
with letters e, h, k, m, n and q have not been implemented at all to the Czech
law. The remaining clauses have been considerably modified.
For instance, the clause marked with the letter b in the Directive has
been introduced to the Czech legal order (§ 56 (3)(b)149) in the following way:
inadmissible are such contractual provisions that inappropriately exclude or limit the
legal rights of a consumer to use the liability for defects or liability for damage150. The
Czech legislator limited the abusiveness of the quoted clause only to cases
concerning liability for products’ defaults or to damage done by these products.
The interpretation of the Directive on the other hand allows to formulate a
statement that it is illegal to limit in any way the liability of an entrepreneur
for not meeting contractual obligations by them. Entrepreneurs cannot, for
instance, exclude liability for untimely delivery of products or provision of
service, neither can they exclude or limit their liability for consumer products’
noncompliance with a contract etc.
A similar unconcern is visible in the example of a feature of the Czech
transposition of the clause marked with the letter f151 in the Directive (its
equivalent in the Czech code is the clause marked with the letter e). The
performed transposition does not contain the second part of the sentence of
the discussed Directive provision, stipulating that a provision is invalid, if it
results in allowing an entrepreneur to keep sums paid for services not yet performed, in
cases when the party terminating a contract is an entrepreneur152, which considerably
§ 56(3)(b) CKC of the Czech Civil Code says: vylučují nebo omezují práva spotřebitele při uplatnění odpovědnosti za vady či
odpovědnosti za škodu.
150
Annex 1(b) to the Directive says: 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.
151
Annex 1(f) to the Directive says: 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.
152
§ 56 (3)(e) of the Czech Civil Code says: opravňují dodavatele odstoupit od smlouvy bez smluvního či zákonného důvodu a
149
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Regulation of illegal contract provisions in selected countries of the European Union
limits the rights of consumers introduced by the Directive.
A minor modification was finally introduced by the transposition of the
clause marked with the letter d153 in the Directive. § 56 (3)(d) of the Czech
Civil Code stipulates that inadmissible are such contract provisions that allow an
entrepreneur not to return a disbursement (e.g. payment) received from a consumer,
also in cases when a consumer does not conclude a contract with a contract supplier or
they withdraw from a contract154. The provision therefore describes a case when
no execution of a contract results from a specific behaviour of a consumer. A
contractor cannot keep for themselves sums previously obtained. The problem
is that the provision does not mention a case when no execution of a contract
results from a specific behaviour of an entrepreneur themselves. It can be
therefore concluded that in the latter case a supplier or seller (entrepreneur)
has the right to keep disbursements obtained from a consumer. It can be
clearly concluded from a comparison of the Czech text with the original text
of the Directive155 and it seems to be completely incorrect.
To sum up, the Czech regulation contains many irregularities which
require quick improvement. In particular, the expected amendment is to
introduce exemplary abusive clauses omitted in the current list and to correct
the irregularities mentioned above.
4.3. Jurisdiction concerning consumer protection and finding the
provisions of standard contracts illegal
The description of normative solutions protecting against abusive clause in
the Czech Republic presented above allows to formulate a statement that such
issues are not paid particular attention to in this country. A temporary nature
of the regulation and no appropriate institutional pro-consumer mechanisms
in the analyzed area make the jurisdiction rudimental. No public register of
abusive clauses is maintained and private entities do not collect appropriate
data. Consumers’ cases are considered by particular courts (usually of the
lowest instance) where judgements are issued, but no general studies,
analyses or statistics are carried out. It can be stated that a dispersed system
of applying provisions on abusive clauses does not facilitate the development
in this field. In spite of establishing contacts with consumer organizations,
representatives of science, including one dean of the Masaryk University in
spotřebitele nikoli.
153
Annex 1(d) to the Directive says: 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.
§ 56 (3)(d) of the Czech Civil Code says: dovolují dodavateli, aby spotřebiteli nevydal jím poskytnuté plnění i v případě, že
spotřebitel neuzavře smlouvu s dodavatelem či od ní odstoupí.
155
Annex 1(d) to the Directive – see footnote no 154.
154
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Brno, it was not possible to collect appropriate judicial material. Therefore, it
ought to be presumed that the abovementioned planned amendment of the
law will change this state of affairs and will positively affect the situation of
consumers in the Czech Republic.
4.4.Comparing the Czech and Polish transposition
The transposition carried out by the Czech legislator contains a number
of drawbacks and serious irregularities which impede and sometimes make
it impossible to grant full protection to consumers, as it was stipulated in the
Directive 93/13.
Among the positive aspects of the Czech regulation one should include
granting protection to a much more numerous group of subjects than it can
be observed in Poland. The Czech legislator decided that consumers are not
only natural persons, but also every entity which enters into transaction for
purposes not relating to their professional activity. De lege ferenda, introducing
such regulation also in our country should be postulated, considering that
protection of non-professionals is a European standard of a kind.
The results of finding a clause abusive also ought to be assessed positively.
Such clause ceases to be binding for a consumer when it is pleaded. Therefore,
contrary to the Polish legislation, it is an entrepreneur who has to prove that a
clause is compliant with legal provisions and it ought to be applied.
To sum up, transposition carried out by the Czech legislator differs from
the guidelines included in the Directive. Attention is drawn in particular by
a great number of omitted abusive clauses. However, it is worth emphasizing
that the expected amendment of consumer law should considerably improve
this situation. In order to eliminate potential doubts it ought to be underpinned
that the Directive 93/13 approaches particular clauses as exemplary and it does
not order to implement them to the fullest extent.
5.
Slovakia
5.1. Sources of law
As it has been mentioned above, the Czechoslovakian Civil Code156 of 1964,
similarly to the Act of 1992 on the protection of consumer rights157 did not contain
Zákon č. 40/1964, občanský zákoník. Zmenený a doplnený: zákonmi č. 58/1969 Zb., č. 131/1982 Zb., úplné znenie č.
70/1983 Zb., zákonmi č. 94/1988 Zb., č. 188/1988 Zb., č. 87/1990 Zb., č. 105/1990 Zb., č. 116/1990 Zb., č. 87/1991 Zb., č. 509/1991
Zb., úplné znenie č. 47/1992 Zb., zákonmi č. 264/1992 Zb., č. 278/1993 Z. z., č. 249/1994 Z. z., č. 153/1997 Z. z., č. 211/1997 Z.
z., č. 252/1999 Z. z., č. 218/2000 Z. z., č. 261/2001 Z. z., č. 281/2001 Z. z., č. 23/2002 Z. z., č. 34/2002 Z. z., č. 95/2002 Z. z., č.
184/2002 Z. z., č. 215/2002 Z. z., č. 526/2002 Z. z., č. 504/2003 Z. z., č. 515/2003 Z. z., č. 150/2004 Z. z., č. 404/2004 Z. z., č.
635/2004 Z. z., č. 171/2005 Z. z., č. 266/2005 Z. z., č. 336/2005 Z. z., č. 118/2006 Z. z. a č. 188/2006 Z. z.
157
Zákon č. 634/1992 Sb., o ochraně spotřebitele. Zmenený a doplnený: zákonmi č. 220/1996 Z. z., č. 137/1998 Z. z., č.
156
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any specific provisions protecting consumers against unfair contract clauses.
The control and supervision of the market regarding consumer protection and
performed by public authorities were only governed by the Act of 274/1993
on judgements concerning consumer protection158, which settled the rights
of certain authorities (i.a. the Minister of Economy, other ministers and some
public authorities, Trade Inspection, as well as local government authorities)159
concerning the supervision of the respecting of consumer rights.
By trnspositioning the Directive, the Slovak legislator amended the Civil
Code160 and several other acts in 2004, including the Code of Civil Proceedings
and the Act on the protection of consumer rights, as they implemented the
provisions of the Directive almost literally. In the supplement to general rules
included in the Slovak Civil Code, the Act on the protection of consumer rights
was also amended in 2004, as it defined more precisely the terms of i.a. consumer
contract and general principles concerning the control and supervision of
the respecting of consumer rights, including those performed by consumer
organizations. One of the most important features of the Slovak regulation
is a precise definition of cooperation between state authorities and nongovernmental organizations, aiming at the promotion of consumer protection
policy161. For instance, it can be mentioned that consumer organizations have
the right to cooperate with public authorities in the field of supervision, as well
as in the field of creating consumer protection policy and extending the scope
of their protection162.
310/1999 Z. z., č. 128/2002 Z. z., č. 414/2002 Z. z.,č. 529/2002 Z. z. a č. 469/2003 Z. z., č. 365/2004 Z. z., č. 451/2004 Z. z. a č.
616/2004 Z. z.
Zákon 274 Národnej Rady Slovenskej Republiky z 20. októbra 1993 o vymedzení pôsobnosti orgánov vo veciach ochrany spotrebiteľa; Ve zneni: 274/1993 270/1995; 152/1995; 137/1998; 310/1999; 18/1999; 115/2000; 108/2000; 258/2001; 147/2001;
106/2001; 105/2001; 545/2002; 414/2002; 128/2002; 23/2002; 469/2003; 273/2003; RO/2003; 125/2003; 119/2003; 622/2004;
616/2004; 469/2004; 451/2004; 399/2004; 398/2004; 384/2004; 383/2004; 379/2004; 355/2004; 308/2004; 302/2004; 284/2004;
206/2004; 182/2004; 156/2004; 101/2004; 99/2004; 22/2004; 658/2005; 651/2005; 605/2005; 400/2005; 60/2005; 266/2005;
242/2005; 182/2005 ; 181/2005; 175/2005; 174/2005; 171/2005; 160/2005; 153/2005; 152/2005; 141/2005; 104/2005; 103/2005;
66/2005; 15/2006; 69/2006; 79/2006; 118/2006; 186/2006; 236/2006; 242/2006; 264/2006; 342/2006.
159
§ 1 of the quoted Act says: Pôsobnosť vo veciach ochrany spotrebiteľa podľa zákona o ochrane spotrebiteľa a tohto zákona
vykonávajú
a) Ministerstvo hospodárstva Slovenskej republiky (ďalej len „ministerstvo hospodárstva“),
b) iné ministerstvá a ostatné ústredné orgány štátnej správy Slovenskej republiky,
c) Slovenská obchodná inšpekcia,
d) okresné úrady,
e) obvodné úrady,
f) obce.
160
Zakon 404 z 24. júna 2004, ktorým sa mení a dopĺňa zákon č. 40/1964 Zb. Občiansky zákonník v znení neskorších
predpisov.
161
It results i.a. from the regulation of § 9 of the Act on the protection of consumers (274/1993), which says:
Združenie spotrebiteľov a iné právnické osoby založené na ochranu spotrebiteľa sú oprávnené
a) spolupracovať s príslušnými orgánmi štátnej správy pri tvorbe a kontrole plnenia štátnej spotrebiteľskej politiky,
b) zúčastňovať sa na tvorbe právnych predpisov vo veciach ochrany spotrebiteľa,
c) podávať podnety orgánom štátnej správy a obcinam v súvislosti s plnením ich úloh vo veciach ochrany spotrebiteľa.
162
Ibidem.
158
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5.2. Analysis of the transposition of the 93/13 Directive to the Slovak
legal system
Basic terms
While comparing the definition of a consumer included in the Union’s
regulation to the definition of § 53 (3) of the Slovak Civil Code, it ought to be
noticed that, similarly to the Czech regulation, a consumer is a person who does
not act in frames of their commercial activity or another kind of economic activity
while concluding and executing a contract163. Such construction of a provision
causes a situation in which a consumer, according to the Slovak, as well as
the Czech law, is not only a natural person, but also a legal person or another
organizational unit not having legal capacity and not concluding a contract in
frames of their commercial activity. Therefore, the Slovak regulation appeals
also to relations between an entrepreneur and a so-called layman.
The definition of a supplier included in § 52 (2) of the Slovak Civil Code
is clear and precise and according to this definition, supplier is a person who
does act in frames of their commercial activity or another kind of economic activity
while concluding and executing a contract164. However, similarly to the regulation
included in the Czech Civil Code, the Slovak legislator has not applied a
reference to the sector in which an entrepreneur operates, indicating only that
they conclude a contract in frames of their economic or professional activity.
It is also worth paying attention to the term of a consumer contract which
has been governed in two separate legal acts in the Slovak legal system. The Slovak
Civil Code stipulates in § 52 (1) that consumer contracts are purchase contracts,
contracts to perform a specified task or work or other contracts stipulating payment,
ordered in the eighth part of the Code and contracts under § 55, if parties to a contract
are a supplier on one part and a consumer on the other part who personally have no
influence on the project of a contract prepared by a supplier165. On the other hand,
the Act on the protection of consumer rights stipulates in Article 23a that
consumer contracts are contracts concluded under to the Civil Code, the Commercial
Code, as well as all other contracts whose characteristic feature is the fact that they are
concluded many times and that consumers cannot significantly affect their content166.
A common feature of the quoted provisions, as well as of the regulation
§ 52 (3) of the Slovak Civil Code says: Spotrebiteľom je osoba, ktorá pri uzatváraní a plnení spotrebiteľskej zmluvy
nekoná v rámci predmetu svojej obchodnej alebo inej podnikateľskej činnosti.
164
§ 52 (2) of the Slovak Civil Code says: Dodávateľ je osoba, ktorá pri uzatváraní a plnení spotrebiteľskej zmluvy koná
v rámci predmetu swojej obchodnej alebo inej podnikateľskej činnosti.
165
§ 52 (1) of the Slovak Civil Code says: Spotrebiteľskými zmluvami sú kúpna zmluva, zmluva o dielo alebo iné odplatné zmluvy
upravené v ôsmej časti tohto zákona a zmluva podľa § 55, ak zmluvnými stranami sú na jednej strane dodávateľ a na druhej strane
spotrebiteľ, ktorý nemohol individuálne ovplyvniť obsah dodávateľom vopred pripraveného návrhu na uzavretie zmluvy.
163
§ 23a of the Act on the protection of consumers (634/1992) says: Spotrebiteľskými zmluvami sú zmluvy uzavreté
podľa Občianskeho zákonníka, Obchodného zákonníka, ako aj všetky iné zmluvy, ktorých charakteristickým znakom
je, že sa uzavierajú vo viacerých prípadoch, a je obvyklé, že spotrebiteľ obsah zmluvy podstatným sposobom neovplyvňuje.
166
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Regulation of illegal contract provisions in selected countries of the European Union
included in Article 1 of the Directive167 is a reference made in the definition
of a consumer contract to the subject party of a contract, by pointing out that
such contracts can be concluded only between consumers and entrepreneurs.
An unquestionable drawback however, is a twofold regulation of the same
term, which in the future may cause doubts concerning the interpretation in
the process of applying both definitions.
The term of illegal contract clauses
While implementing the Directive 93/13, the Slovak legislator introduced
to the Civil Code provisions governing contracts containing “unfavourable
conditions” („neprijateľne podmienky”) for consumers. According to the
definition included in § 53 (1), these are the provisions which cause a significant
imbalance in the scope of rights and obligations of contractual parties to the detriment
of a consumer168. While comparing this definition with its counterpart in the
Directive, it ought to be noticed that, just as it was in the Czech regulation,
also in this case the legislator does not refer to the principles of good faith
while concluding a contract, indicating only the element of imbalance to the
detriment of a consumer. It is also worth emphasizing that the Slovak regulation
introduces an element of individual negotiation of contract terms, not as a
separate general clause, constituting a base for standard contract regulation,
but as a component part of the definition of a consumer contract. For the sake
of reminding, the provisions of § 52 (1) of the Slovak Civil Code stipulate
explicitly that consumer contracts are contracts (...) if parties to a contract are a
supplier on one part and a consumer on the other part who personally has no influence
on the project of a contract prepared by a supplier169 . A similar definition of a
consumer contract can be found in § 23a (1) of the Act on consumer protection,
which says that consumer contracts are contracts (...) which are aharacterized
by the fact that consumers cannot significantly influence their content. Therefore,
it ought to be stated that a significant element of finding any contract a
consumer contract is lack of consumers’ influence on the content of a contract.
It also means limiting the scope of application of the analyzed regulation.
Since the protection against applying abusive clauses concerns only consumer
clauses, than consumer rights are not duly protected in any case when they
have had, even indirect, influence on negotiated terms. In other words, if a
Article 1(1) of the Directive 93/13 says: 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.
168
§ 53 (1) of the Slovak Civil Code says: Spotrebiteľské zmluvy nesmú obsahovať ustanovenia, ktoré spôsobujú značnú
nerovnováhu v právach a povinnostiach zmluvných strán v neprospech spotrebiteľa (d’alej len „neprijateľná podmienka”).
169
§ 52 (1) of the Slovak Civil Code says: Spotrebiteľskými zmluvami sú kúpna zmluva, zmluva o dielo alebo iné odplatné zmluvy
upravené v ôsmej časti tohto zákona a zmluva podľa § 55, ak zmluvnými stranami sú na jednej strane dodávateľ a na druhej strane
spotrebiteľ, ktorý nemohol individuálne ovplyvniť obsah dodávateľom vopred pripraveného návrhu na uzavretie zmluvy.
167
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
consumer participated in negotiating contract terms, they are not entitled
to receive legal protection based on the provisions concerning consumer
protection. Therefore, the Slovak regulation of abusive clauses applies only in
case of standard contracts previously prepared by entrepreneurs, on which
consumers have no influence.
It is worth emphasizing the importance of § 54 (2) of the Slovak Civil Code,
which in a plain and intelligible way implements the rule of interpretation to
the domestic legal system, which obliges to interpret all doubts resulting from
a contract to the favour of a consumer. The quoted provision says directly
that in case of occurrence of doubts concerning the content of consumer contracts,
the interpretation most favourable for a consumer is binding170. This provision
considerably facilitates prosecuting claims for consumers, in particular
it applies in common banking trade or in common contracts with media
suppliers. Contracts concluded with mentioned entities are characterized by
a high level of complexity and their complete analysis often requires a broad
knowledge of law and experience, which consumers usually lack.
A significant element of the Slovak regulation are the provisions of § 53
(4) of the Slovak Civil Code, which says that unfavourable terms governed by
consumer contracts are invalid171. This provision ought to be considered from
a broader perspective, having regard to the provisions of § 41 of the Slovak
Civil Code, which says that if the cause of invalidity concerns only certain part of
a legal action, than only this part becomes invalid, if the character of the legal action,
its content or circumstances in which the action was performed do not imply that
that this part cannot be separated from the remaining content172. Therefore, it can
be assumed that the Slovak regulation is based on a model of invalidity of
illegal clauses ex tunc, while, if the invalidity concerns a single provision of
a consumer contract, not affecting the remaining part of a contract, than only
this provision becomes invalid and the remaining part of a contract is binding
for the contractual parties.
Including the obligation to provide evidence directly to the Slovak Code of
Civil Proceedings173 also needs to be assessed positively (§ 120 (1) of the Slovak
Code of Civil Proceedings174). A drawback of the quoted provision is the
§ 54 (2) of the Slovak Civil Code says: V pochybnostiach o obsahu spotrebiteľských zmlúv platí výklad, ktorý je pre spotrebiteľa
priaznivejší.
171
§ 53 (4) of the Slovak Civil Code says: Neprijateľné podmienky upravené v spotrebiteľských zmluvách sú neplatné.
172
§ 41 of the Slovak Civil Code says: Ak sa dôvod neplatnosti vzťahuje len na časť právneho úkonu, je neplatnou len táto časť,
pokiaľ z povahy právneho úkonu alebo z jeho obsahu alebo z okolností, za ktorých k nemu došlo, nevyplýva, že túto časť nemožno
oddeliť od ostatného obsahu.
173
99/1963 Zb. Občiansky súdny poriadok zo 4. decembra 1963 36/1967 Zb.; 158/1969 Zb.; 49/1973 Zb.; 20/1975 Zb.;
133/1982 Zb.; 180/1990 Zb.; 328/1991 Zb.; 519/1991 Zb.; 263/1992 Zb.; 5/1993 Z.z.; 46/1994 Z.z.; 190/1995 Z.z.; 232/1995 Z.z.;
233/1995 Z.z.; 22/1996 Z.z.; 58/1996 Z.z.; 281/1996 Z.z.; 211/1997 Z.z.; 359/1997 Z.z.; 124/1998 Z.z.; 144/1998 Z.z.; 169/1998
Z.z.; 187/1998 Z.z.; 225/1998 Z.z.; 233/1998 Z.z.; 235/1998 Z.z.; 318/1998 Z.z..; 331/1998 Z.z..; 46/1999 Z.z.; 66/1999 Z.z.;
185/1999 Z.z.; 223/1999 Z.z.; 303/2001 Z.z.; 501/2001 Z.z.; 215/2002 Z.z.; 232/2002 Z.z.; 424/2002 Z.z.; 451/2002 Z.z.; 480/2002
Z.z.; 620/2002 Z.z.; 75/2003 Z.z.; 353/2003 Z.z.; 530/2003 Z.z.; 589/2003 Z.z.; 204/2004 Z.z.; 371/2004 Z.z.; 382/2004 Z.z.;
420/2004 Z.z.; 428/2004 Z.z.; 613/2004 Z.z.; 757/2004 Z.z.; 36/2005 Z.z.; 290/2005 Z.z.; 341/2005 Z.z.; 40/2006 Z. z.
174
§ 120 (1) of the Slovak Civil Code says: Účastníci sú povinní označiť dôkazy na preukázanie svojich tvrdení. Súd
170
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Regulation of illegal contract provisions in selected countries of the European Union
fact that it is not adjusted to the European regulation. It says that participants
of an action are obliged to provide evidence of their statements (...) The court may
exceptionally examine other evidence than this which is provided by participants,
if examining it is necessary for issuing a judgement. Therefore, the obligation
to prove that a contract provision is not compliant with law (so-called onus
probandi) belongs to a consumer. Courts are entitled to examine evidence ex
officio, which may facilitate a statement advantageous for a consumer. A clear
default however, is lack of judicial presumption or at least moving the burden
of proof175 to an entrepreneur as an transposition of the provisions of Article
3(2) sentence 3 of the Directive176.
Analysis of particular clauses
Transposition of particular abusive clauses is included in the provisions
of § 53(3) (a)-(j) of the Slovak Civil Code177. While analyzing the performed
transposition, it ought to be stated in the beginning that the Slovak legislator
transposed nine out of seventeen illegal contract clauses mentioned in the
Directive directly to the Civil Code and only one of clauses included in this
part was altered. It is worth emphasizing that seven clauses described in the
Directive have been transposed to the Slovak legal system, either to other
parts of the Civil Code, or to different legal documents. In the part “consumer
contracts” of the Slovak Civil Code clauses marked with the following letters
have been completely implemented: a (in the Slovak Civil Code § 53(3)(c)), d (in
the Slovak Civil Code (e)), f (in the Slovak Civil Code (f)), g (in the Slovak Civil
rozhodne, ktoré z označených dôkazov vykoná. Súd môže výnimočne vykonať aj iné dôkazy, ako navrhujú účastníci,
ak je ich vykonanie nevyhnutné pre rozhodnutie vo veci.
175
As concerns the correctness of the transposition of this provision in Poland, in spite of the existance of an appropriate provision (3851 § 4 of the Civil Code), its normative effects are little. The fact that the transposition is incorrect can
also be blamed on the domestic legislator. More on the subject can be found in: M. Skory, Klauzule abuzywne w Polskim
prawie ochrony konsumenta, Zakamycze 2005.
176
Article 3 (2) sentence 3 of the Directive says: 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.
177
§ 53( 3) of the Slovak Civil Code says: Za neprijateľné podmienky uvedené v spotrebiteľskej zmluve sa považujú najmä ustanovenia, ktoré
a) má spotrebiteľ plniť a s ktorými sa nemal možnosť oboznámiť pred uzavretím zmluvy,
b) dovoľujú dodávateľovi previesť práva a povinnosti zo zmluvy na iného dodávateľa bez súhlasu spotrebiteľa, ak by
prevodom došlo k zhoršeniu vymožiteľnosti alebo zabezpečenia pohľadávky spotrebiteľa,
c) vylučujú alebo obmedzujú zodpovednosť dodávateľa za konanie alebo opomenutie, ktorým sa spotrebiteľovi spôsobila smrť alebo ujma na zdraví,
d) vylučujú alebo obmedzujú práva spotrebiteľa pri uplatnení zodpovednosti za vady alebo zodpovednosti za škodu,
e) umožňujú dodávateľovi, aby spotrebiteľovi nevydal ním poskytnuté plnenie aj v prípade, že spotrebiteľ neuzavrie s
dodávateľom zmluvu alebo od nej odstúpi,
f) umožňujú dodávateľovi odstúpiť od zmluvy bez zmluvného alebo zákonného dôvodu a spotrebiteľovi to neumožňujú,
g) oprávňujú dodávateľa, aby bez dôvodov hodných osobitného zreteľa vypovedal zmluvu uzavretú na dobu neurčitú
bez primeranej výpovednej lehoty,
h) prikazujú spotrebiteľovi, aby splnil všetky záväzky aj vtedy, ak dodávateľ nesplnil záväzky, ktoré vznikli,
i) umožňujú dodávateľovi jednostranne zmeniť zmluvné podmienky bez dôvodu dohodnutého v zmluve,
j) určujú, že cena tovaru alebo služieb bude určená v čase ich splnenia, alebo dodávateľa oprávňujú k zvýšeniu ceny tovaru alebo
služieb bez toho, aby spotrebiteľ mal právo odstúpiť od zmluvy, ak cena dohodnutá v čase uzavretia zmluvy je podstatne prekročená
v čase splnenia.
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Code (g)), i (in the Slovak Civil Code (a)), j (in the Slovak Civil Code (i)), l (in
the Slovak Civil Code (j)), o (in the Slovak Civil Code (h)), p (in the Slovak Civil
Code (b)). The above enumeration allows to draw a conclusion that the Slovak
legislator granted different significance to particular clauses, as it was done by
the European legislator. A statement may be formulated that by changing the
order of particular clauses in a list included in § 53(3) of the Slovak Civil Code
the Slovak legislator indicated that they ascribe greater importance to different
clauses than the European legislator did. The clause marked with the letter b
in the Directive and with d in the Slovak code was considerably changed,
basically limited. The Slovak legislator decided namely that as an unfavourable
condition shall be regarded a provision which excludes or limits the consumer’s right
to use liability for default or liability for damages178. While analyzing the quoted
provision, it can be noticed in the beginning that the Slovak legislator applies
a term “liability for defaults”, the term which is avoided in the European
legislation and replaced by liability for noncompliance of a product with a
contract or objectionable performance of contractual obligations by a seller.
The original version of the Directive used a term non-performance or inadequate
performance (…) of any contractual obligations179. The performed transposition
can therefore be summed up as not entirely compliant with the spirit of the
European law and due to other regulations concerning warranty for defaults,
not entirely adjusted to the Union’s consumer protection policy.
Remaining contractual clauses, as it has been indicated above, have been
implemented in other parts of the Civil Code, or in other legal documents.
§ 442 (1) and (3) of the Slovak Civil Code180 can be provided as an example,
which together with § 450 of the Slovak Civil Code181 and § 6 (3) sentence 1 of
the Act on consumer protection182 constitute an equivalent of a clause included
in the letter e of the Annex to the Directive, or in § 8 (1) and § 9 (4) of the Act
on consumer protection183 which are an equivalent of the clause included in
d) vylučujú alebo obmedzujú práva spotrebiteľa pri uplatnení zodpovednosti za vady alebo zodpovednosti za škodu.
Letter b of the Annex to the Directive says: Terms which hale the object or effect of inappropriately excluding or limiting
the legal rights of the consumer vis-a-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 seller or supplier against any claim which the consumer may have against him.
180
§ 442 of the Slovak Civil Code says:
(1) Uhrádza sa skutočná škoda a to, čo poškodenému ušlo (ušlý zisk).
(2) Pri škode spôsobenej niektorým trestným Inom korupcie sa uhrádza aj nemajetková ujma v peniazoch.
(3) Škoda sa uhrádza v peniazoch; ak však o to poškodený požiada a ak je to možné a účelné, uhrádza sa škoda uvedením od predošlého
stavu.
181
§ 450 of the Slovak Civil Code says::
Z dôvodov hodných osobitného zreteľa súd náhradu škody primerane zníži. Vezme pritom zreteľ najmä na to, ako ku
škode došlo, ako aj na osobné a majetkové pomery fyzickej osoby, ktorá ju spôsobila; prihliadne pritom aj na pomery
fyzickej osoby, ktorá bola poškodená. Zníženie nemožno vykonať, ak ide o škodu spôsobenú úmyselne.
182
§ 6 (3) of the Act on consumer protection says: Predávajúci nesmie konať v rozpore s dobrými mravmi.
183
§ 8 (1) of the Act on consumer protection says: Nikto nesmie klamať spotrebiteľa, najmä uvádzať nepravdivé, nedoložené,
neúplné, nepresné, nejasné, dvojzmyselné alebo prehnané údaje alebo zamlčať údaje o skutočných vlastnostiach výrobkov alebo
služieb alebo úrovni nákupných podmienok.
§ 9 ust. 4 ustawy o ochronie konsumentów stanowi: Predávajúci je povinný riadne informovať spotrebiteľa o vlastnostiach predávaných výrobkov alebo charaktere poskytovaných služieb, o spôsobe použitia a údržby výrobku a o
178
179
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the letter k of the Annex to the Directive. A similar transposition was carried
out in the case of clauses marked with the following letters in the Directive: b
(§ 53 (3) (d) of the Slovak Civil Code with § 54(1) of the Slovak Civil Code184),
h (§ 493 of the Slovak Civil Code185), m (§ 8 (1) with § 3 (1) (a) –(b) of the Act on
consumer protection186), n (§ 22(1) with § 420 (2) of the Slovak Civil Code187).
5.3. Jurisdiction concerning consumer protection and finding the
provisions of standard contracts illegal
In spite of taking considerable efforts, including engaging several Slovak
lawyers who remained in Poland, there was little juisdiction collected in the
course of preparing this study. Lack of publications of the representatives
of the Slovak civilistic doctrine allows to formulate a statement that the
protection of consumer rights and the procedure of finding the provisions of
standard contracts illegal are not suficiently developed in this country. The
abovementioned situation assuredly results from the fact than only in 2004
did the Slovak legislator implement a thorough reform of the Czechoslovakian
Civil Code of 1964 and the Act on the protection of consumer rights of
1992, introducing general principles concerning carrying out controls and
supervision of observing consumer rights. It ought to be emphasized that only
in March 2006 did the European Consumer Centre (Verejné obstorávanie)
begin to function in Slovakia, which was partly subsidized by the state and
by a European Comission division, responsible for promoting health and
nebezpečenstve, ktoré vyplýva z jeho nesprávneho použitia alebo údržby, ako aj o riziku súvisiacom s poskytovanou
službou. Ak je to potrebné s ohľadom na povahu výrobku, spôsob a dobu jeho používania, je predávajúci povinný
zabezpečiť, aby tieto informácie boli obsiahnuté v priloženom písomnom návode a aby boli zrozumiteľné.
184
§ 54 of the Slovak Civil Code says: (1) Zmluvné podmienky upravené spotrebiteľskou zmluvou sa nemôžu odchýliť od tohto
zákona v neprospech spotrebiteľa. Spotrebiteľ sa najmä nemôže vopred vzdať svojich práv, ktoré mu tento zákon priznáva, alebo si
inak zhoršiť svoje zmluvné postavenie.
(2) V pochybnostiach o obsahu spotrebiteľských zmlúv platí výklad, ktorý je pre spotrebiteľa priaznivejší.
185
§ 493 of the Slovak Civil Code says: Záväzkový vzťah nemožno meniť bez súhlasu jeho strán, pokiaľ tento zákon neustanovuje
inak.
186
§ 3 (1) of the Act on consumer protection says: Predávajúci je povinný:
a) predávať výrobky v správnej hmotnosti, miere alebo množstve a umožniť spotrebiteľovi prekontrolovať si správnosť týchto
údajov,
b) predávať výrobky a poskytovať služby v kvalite ustanovenej osobitnými predpismi5) alebo v bežnej
kvalite; ak kvalita nie je predpísaná alebo ustanovená osobitným predpisom, môže predávajúci predávať výrobky v
inej ako bežnej kvalite, len ak spotrebiteľa upozorní na všetky rozdiely v kvalite. Bežnou kvalitou sa rozumie kvalita,
ktorá nie je ustanovená osobitnými predpismi a výrobok alebo služba nevykazuje zjavné vady, na ktoré je predávajúci
povinný spotrebiteľa upozorniť.
187
§ 22 of the Slovak Civil Code says:: (1) Zástupcom je ten, kto je oprávnený konať za iného v jeho mene. Zo zastúpenia vznikajú
práva a povinnosti priamo zastúpenému.
(2) Zastupovať iného nemôže ten, kto sám nie je spôsobilý na právny úkon, o ktorý ide, ani ten, záujmy ktorého sú v
rozpore so záujmami zastúpeného.
§ 420 ust. 2 SKC stanowi: Škoda je spôsobená prevádzkovou činnosťou, ak je spôsobená
a) činnosťou, ktorá má prevádzkovú povahu, alebo vecou použitou pri činnosti,
b) fyzikálnymi, chemickými, prípadne biologickými vplyvmi prevádzky na okolie,
c) oprávneným vykonávaním alebo zabezpečením prác, ktorými sa spôsobí inému škoda na nehnuteľnosti alebo sa mu podstatne
sťaží alebo znemožní užívanie nehnuteľnosti.
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consumer protection. The objective of this European association is to help
consumers in solving disputes in front of judicial and extra-judicial bodies
and to inform consumers about their rights and obligations. There is a
Ministry of Consumer Protection in Slovakia, which maintains and finances
a central register of the judgements of Slovak courts concerning consumer
protection, however, for the time being, there are no judgements which would
prohibit application of particular contract clauses which are found abusive.
Among the few judgements which are included in the Slovak register, the only
judgements that can be found are those in which Slovak courts (mainly of the
lowest instance) allowed to apply specific contract clauses, due to the fact that
the questioned provisions were compliant with legal provisions and were not
detrimental to consumers.
The key issue is the cooperation between state authorities, including the
Slovak Ministry of Consumer Protection, with consumer organizations and
non-governmental organizations, in terms of education and promotion of
consumer rights, as well as providing assistance in solving disputes in courts
and outside courts.
It ought to be mentioned that the European Consumer Centre in Slovakia
also cooperates with other organizations which help to solve consumers’
disputes, e.g. EEJ-NET (a network of institutions dealing with alternative
ways of solving disputes) or FIN-NET (a similar network operating in the field
of finance services). The scope of duties of the European Consumer Centre
also includes monitoring judicial cases and judgements concerning consumer
protection ans economic interest. However, it is worth emphasizing once
more that due to a short period of application of the Slovak regulation, no
jurisdiction concerning consumer protection has yet been developed.
5.4. Comparing the Slovak and Polish transposition
Referring to the origins, the Slovak transposition is much more precise
than its twin Czech regulation. A significant difference consists in a specific
dualism of the Slovak regulation which means that applicable provisions are
included both in the Slovak Civil Code and in the Act on the protection of
consumer rights. This kind of duality has to be assessed negatively, paying
attention in particular to the fact that some provisions are repeated in both
acts, which may considerably impede their applicaton.
Comparing the Slovak and Polish transpositions, it ought to be noticed
that the objective scope of the Slovak regulation has been limited to standard
contracts and to commonly applied contracts of adhesive character. The Slovak
legislator excluded in an immensly explicit way the contracts, while concluding
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which consumers have the possibility to modify their contents, from the scope
of application of consumer law. In other words, the Slovak Civil Code, as well
as the Act on the protection of consumer rights, grants protection only to
consumers whose entering into contracts means participation and consent to
the application of a standard suggested by an entrepreneur.
Similarly to the majority of European regulations and contrary to the
situation in Poland, the Slovak law regards as consumers everyone who
concludes a contract for purposes not related to their economic or professional
activity.
A positive aspect of the Slovak regulation is settling the efficiency of
provisions considered abusive. The legislator decided namely that unfair
contract clauses are invalid by operation of law and with an ex tunc effect.
Such explicit decision seems to be more rational than the one applied by the
Polish legislator.
An element of the Slovak transposition which is significant from the process
point of view is leaving the burden of proof to consumers. Such solution is
obviously contrary to the objective of the 93/13 Directive, as it makes it more
difficult for already harmed consumers to claim their rights in court. A similar
solution has been included in the Polish regulation in Article 3851 § 4 of the
Civil Code which stipulates that the burden of proof that a provision has been
established individually belongs to the party pleading it. Basically, it is a repetition
of the principle determined in Article 6 of the Civil Code and it seems not
to individually bring any new normative content. Such solutions have to be
assessed negatively and their fast improvement has to be postulated, e.g. by
introducing an evidence presumption. Such presumption ought to contain
a rule of law which would stipulate that provisions of contracts entered
into with consumers are not considered individually negotiated, unless an
entrepreneur proves that this was not the case.
To sum up, the Slovak transposition, although performed in a translatory
way, varies significantly from the guidelines of the European legislator.
A comparison between the Slovak and Polish legislation concerning consumer
protection against abusive clauses is favourable for Poland.
6.
Hungary
6.1. Sources of law
The beginning of applying standard contracts can be found in the Hungarian
economic activity only at the end of 1960s. Court jurisdiction developed
specific criteria of assessing general contract terms, but they did not concern
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protecting consumers against abusive clauses. The amendment of the
Hungarian Civil Code 188 carried out in 1978 completely reorganized than
existing legal system. Amended Article 209 of the Civil Code stipulated that
a standard contract individually formulated by a legal person, which grants
groundless and unjustified advantage to one of the parties to a legal relation,
could be made invalid. The other contractual party and some state or local
government authorities were entitled to sue for invalidation. Therefore, it is
not difficult to notice that this solution was very similar to former regulation
included in the Polish Civil Code.
Hungary became a member of the European Union on 1 May 2004, when
the time given to Member States for the transposition of the Directive had
already passed. However, the Hungarian legislator had already carried out a
transposition of provisions concerning abusive clauses before, as it was one
of the obligations required in the process of accession. Already in 1997 the
Directive 93/13 was implemented to the Hungarian Civil Code – to the law
on obligations. However, it is worth emphasizing that code provisions have
been amended several times in the recent years, due to the judgements of the
European Court of Justice.
It ought to be pointed out that the Hungarian law stipulates a wider legal
protection of entities, concerning the application of illegal contract clauses
than the regulations included in the Union’s Directive. The Hungarian Civil
Code contains provisions referring to all persons applying general contractual
terms. Assessment of the content of a standard contract is therefore possible
in all contractual relations. As regards the relations between entrepreneurs
and consumers, the principles of the Civil Code have been completed with
a list of the so-called list of black and grey contract provisions introduced by
a government regulation no. 18/1999 (II. 5)189. It also ought to be noticed that
together with the amendment of the Civil Code, which became binding in
2006, the consequences of the abusiveness of clauses were also changed. The
amendment of 2006 also limited the scope of the so-called actio popularis, as
regards contracts between entrepreneurs and consumers. Further amendments
are expected in relation to the so-called “big” reform of the Civil Law,
including i.a. limiting the definition of a consumer only to natural persons
and the regulation concerning the so-called conflict of standard contracts.
1959. évi IV. Törvény a Polgári Törvénykönyvről [Egységes szerkezetben a Ptk. hatálybalépéséről és végrehajtásáról
szóló 1960. évi 11. törvényerejű rendelettel (a továbbiakban Ptké.) és a Ptk. módosításáról és egységes szövegéről szóló
1977. évi IV. törvény hatálybalépéséről és végrehajtásáról rendelkező 1978. évi 2. törvényerejű rendelettel (a továbbiakban Tvr.).].
188
Regulation of the Government on qualifying dishonest terms of contracts concluded with consumers (Journal of
Laws.18/1999. (II.5.), issued on the basis of an authorization included in §11 (4) of the Act no. CXLIX of 1997 on the
amendment of the Act IV on the Civil Code of the Republic of Hungary of 1959.
189
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6.2. Analysis of the transposition of the Directive 93/13 to the Hungarian
legal system
Basic terms
While analyzing the transposition of the Dirctive 93/13 carried out by
the Hungarian legislator, the differences in defining basic concepts, namely
“consumer” and “seller or supplier” ought to be pointed out in the first place.
These provisions have been included in Article 685 of the Hungarian Civil
Code of 1959. A superficial analysis allows to formulate a statement that the
transposition of the term “consumer” has been performed to the Hungarian
law somewhat differently than in the Union’s regulation. The subject scope of
Article 685 (d)190 is namely much broader than it is stipulated in the Union’s
regulation. The Directive includes to the concept of a consumer only natural
persons who act for purposes not referring to trade, enterprise or profession.
Apart from natural persons, the Hungarian Civil Code also covers legal
persons and organizational entities which have been granted legal personality.
A broadened transposition has to be assessed positively, also due to similar
regulations being included in the French, Czech and Slovak law.
It is also worth paying attention to the definition of “an economic entity”
(Article 685 (c))191, which contrary to the regulation contained in the Directive,
includes an enumerative catalogue of persons or institutions regarded as
professionals in relations with consumers192. The Hungarian definition also
contains a reference to the public and private sector of the economy, moreover
its subject scope covers natural and legal persons, similarly to the Directive.
The Hungarian Civil Code contains “a definition of a consumer contract”
(Article 685 (e) of the Hungarian Civil Code)193 saying that a consumer contract
The provisions of Article 685 (d) of the Hungarian Civil Code say: 685. § E törvény alkalmazásában (…)
d) fogyasztó: a gazdasági vagy szakmai tevékenység körén kívül eső célból szerződést kötő személy.
191
The provisions of Article 685 (c) of the Hungarian Civil Code say: 685. § E törvény alkalmazásában (…)
c) gazdálkodó szervezet: az állami vállalat, az egyéb állami gazdálkodó szerv, a szövetkezet, a lakásszövetkezet, az
európai szövetkezet, a gazdasági társaság, az európai részvénytársaság, az egyesülés, az európai gazdasági egyesülés,
a közhasznú társaság, az egyes jogi személyek vállalata, a leányvállalat, a vízgazdálkodási társulat, az erdőbirtokossági
társulat, a végrehajtói iroda, továbbá az egyéni vállalkozó. Az állam, a helyi önkormányzat, a költségvetési szerv, az
egyesület, a köztestület, valamint az alapítvány gazdálkodó tevékenységével összefüggő polgári jogi kapcsolataira is
a gazdálkodó szervezetre vonatkozó rendelkezéseket kell alkalmazni, kivéve, ha a törvény e jogi személyekre eltérő
rendelkezést tartalmaz.
192
The quoted provision says that: as an economic entity should be regarded: state-owned enterprise, another state-owned economic entity, a cooperative, company, association, European economic association, bodies of general interest, enterprise of a legal
person, affiliated company of an enterprise, association of water law companies, association of forest administrations, bailiff’s office
and persons running an economic activity. The state, local government, household entity, association, membership institution and
foundation which run an economic activity connected with the civil law and are obliged to apply provisions referring to economic
activities, apart from those provisions which do not concern legal persons.
193
The provisions of Article 685 (e) of the Hungarian Civil Code say: 685. § E törvény alkalmazásában (…)
e) fogyasztói szerződés: az a szerződés, amely fogyasztó és olyan személy között jön létre, aki (amely) a szerződést gazdasági vagy
szakmai tevékenysége körében köti; a törvény jótállásra és kellékszavatosságra vonatkozó szabályai alkalmazásában az a szerződés
minősül fogyasztói szerződésnek, amelynek tárgya ingó dolog, kivéve a villamos energiát, a - tartályban, palackban vagy egyéb módon korlátozott mennyiségben vagy meghatározott űrtartalommal ki nem szerelt - vizet és gázt, továbbá a végrehajtási eljárás vagy
más hatósági intézkedés folytán eladott dolgot, valamint az olyan árverésen eladott használt dolgot, amelyen a fogyasztó személyesen
részt vehet (fogyasztási cikk).
The provision says that: a contract which is concluded between a consumer with a person concluding it in frames of their economic
190
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is a contract which is concluded between a consumer with a person concluding it
in frames of their economic or professional activity; under application of the Act
regarding provisions pleading guarantee and warranty, a contract can be qualified as
a consumer contract, if its subject is a movability, except for electric energy, water
and gas in containers or of otherwise limited quality or established capacity, as well
as commodities sold in an execusion process or as a result of another resolution issued
by authorities, or a used commodity sold at an auction in which a consumer may
participate personally (consumables). The first sentence of the quoted provision is
therefore identical with the Union’s regulation. The difference results from the
second part which clearly defines the scope of application of the definition of
a consumer contract in cases of warranty and guarantee.
Analysis of the transposition
Considering the scope and mode of the transposition of the 93/13 Directive
carried out by the Hungarian legislator, it ought to be stated in the very
beginning that the prevailing part of the Directive has been transposed to
the Hungarian Civil Code. Apart from a code regulation, the Code contains
mainly particular abusive clauses enumerated in the Annex to the Directive
(fourteen out of seventeen clauses), as well as Article 6(2) and Article 7 of the
Directive, transposed to the Regulation on unfair contract clauses of 1978194, as
well as the Act: International Private Law195. It is also worth paying attention
to the fact that particular provisions concerning consumer protection and
abusive clauses have been included in respective parts the Hungarian code,
depending on the subject they concern. For instance, the provisions of the
Directive which determine the way of concluding an agreement, including the
conclusion of adhesive contracts, have been settled in the chapter concerning
the issuing of declarations of intent196, whereas the effects of provisions
considered abusive have been included in the part concerning invalidity
of declarations of intent197. However, attention ought to be paid to the fact
that the Hungarian legislator unfortunately turned out to be inconsistent in
distributing particular provisions in the sections of the Hungarian Civil Code.
For instance, a provision concerning moving the obligation to provide evidence
for the validity of a contract provision to the party suggesting a standard was
included in the section concerning the issuing of declarations of intent198.
or professional activity; under application of the Act regarding provisions pleading guarantee and warranty, a contract can be
qualified as a consumer contract, it its subject is a movability, except for electric energy, water and gas in containers or of otherwise
limited quality or established capacity, as well as commodities sold in an execusion process or as a result of another resolution issued
by authorities, or a used commodity sold at an auction in which a consumer may participate personally (consumables).
196
197
198
194
195
1978. évi 2. törvényerejû rendeleta Polgári Törvénykönyv módosításáról és egységes szövegérõl szóló.
1979. évi 13. törvényerejű rendelet a nemzetközi magánjogról.
Articles 205a -207 of the Hungarian Civil Code.
Article 239 of the Hungarian Civil Code.
Article 205A (2) of the Hungarian Civil Code.
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Analyzing the term of standard contracts, it ought to be noticed that the
Hungarian legislator settled the so-called standard standards concerning all
participants of economic activity. Therefore, it is impossible to find a specific
regulation of standard contracts in the Hungarian Civil Code, which would
apply only to relations between entrepreneurs and consumers. Article 205A(1)
says that any contractual provisions, previously prepared by one of the parties as a
standard standard contract which could not be affected by the other party and which
have not been individually negotiated, should be considered a standard contract term199.
Including this provision in a general part, containing general principles of
issuing declarations of intent, allows to formulate a thesis that the objective of
this provision is to entirely settle the issue of applying general contract terms
in a common, not only consumer trade. The situation is similar in the case of
(3) of the quoted Article 205A of the Hungarian Civil Code which says that
the scope of contractual conditions, the way they are formulated and established, as
well as including them in one or in many different documents, remains irrelevant for
considring a contract provision a standard contract200. This provision is applied in
all business relations, without limiting the scope of application to consumer
contracts. It is also worth paying attention to the provisions of Article 205B(2)
of the Hungarian Civil Code, which says that the other party should be explicitly
informed about any standard contracts which significantly vary from standard models
applied in contracts of a given kind and if it does vary from standards, provisions or
obligations previously applied by these two parties201. This provision establishes
a very significant principle obliging a party suggesting a standard contract to
explicitly indicate “nonstandard” contract terms. However, this institution has
not been supported with significant tools of individual protection of consumers.
The Code does not introduce any particular sanctions for behaviour contrary
to a proposition of law resulting from this provision, but it merely gives the
possibility to state invalidity in a normal action.
A significant element of regulation concerning standard contracts is also
establishing a range of guidelines concerning the application and interpretation
of standard contracts, applied both in professional trade and in relations with
consumers. For instance, the provisions of Article 205C of the Hungarian Civil
Code stipulate that in case of a so-called war of models or a model and another
Article 205/A. § (1) of the Hungarian Civil Code says: Általános szerződési feltételnek minősül az a szerződési feltétel, amelyet az egyik fél több szerződés megkötése céljából egyoldalúan, a másik fél közreműködése nélkül előre meghatároz, és amelyet a felek
egyedileg nem tárgyaltak meg.
200
Article 205/A. § (3) of the Hungarian Civil Code says: Az általános szerződési feltételnek minősítés szempontjából közömbös a szerződési feltételek terjedelme, formája, rögzítésének módja, és az a körülmény, hogy a feltételek
a szerződési okiratba szerkesztve vagy attól elválasztva jelennek meg.
201
Article 205/B. § (2) of the Hungarian Civil Code says: Külön tájékoztatni kell a másik felet arról az általános szerződési
feltételről, amely a szokásos szerződési gyakorlattól, a szerződésre vonatkozó rendelkezésektől lényegesen vagy valamely korábban
a felek között alkalmazott kikötéstől eltér. Ilyen feltétel csak akkor válik a szerződés részévé, ha azt a másik fél - a külön, figyelemfelhívó tájékoztatást követően - kifejezetten elfogadta.
199
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provision, the model introduced later or another provision shall apply202. On
the other hand, the provisions of Article 207(5) of the Hungarian Civil Code
stipulate that secret agreements, as well as hidden motives do not apply and
should remain without effect on the validity of the whole contract203. Article
207(1) of the Hungarian Civil Code also finds a general application. The Article
says that contracts and their particular provisions should be interpreted,
making allowance for generally accepted meaning of the applied words204.
A completion of this regulation concerning consumers is provided in Article
207(2) of the Hungarian Civil Code, which says that if the interpretation of a
standard term or a standard contract included in a consumer contract according to the
principles provided in Article 207(1) does not give expected results, an interpretation
most favourable for a consumer should be applied205. Therefore, this provision
is virtually a literal reflection of the provision included in Article 5 of the
Directive.
Particular attention ought to be paid to regulations concerning the
sanctions for contracts containing unfair provisions. It should be noticed that
the provisions of Article 209(1) of the Hungarian Civil Code constitute a literal
transposition of Article 3(1) of the Directive. Similarly to the regulation included
in the Directive, the quoted provision makes considering contract terms unfair
dependent, in cases when such terms, being contrary to the requirements of
good faith and honesty, cause a significant imbalance in rights or obligations
resulting from a contract to the benefit of an entrepreneur206. At the same time
the nature of a contract, according to Article 209(2) of the Hungarian Civil Code,
should be determined considering the kind of commodities or services which a contract
concerns, referring, throughout the term of contract execution, to all circumstances
connected with executing the contract and to other terms of this contract or another
contract on which this one is dependent207. This is therefore a literal transposition
of the provisions of Article 4(1) of the Dirctive. The provisions of Article 4.2
of the Directive (Article 209(4) of the Hungarian Civil Code208) and of Article
Article 205/C. of the Hungarian Civil Code says: Ha az általános szerződési feltétel és a szerződés más feltétele
egymástól eltér, az utóbbi válik a szerződés részévé.
203
Article 207 (5) of the Hungarian Civil Code says: A felek titkos fenntartása vagy rejtett indoka a szerződés érvényessége
szempontjából közömbös.
204
Article 207. (1) of the Hungarian Civil Code says: A szerződési nyilatkozatot vita esetén úgy kell értelmezni, ahogyan azt
a másik félnek a nyilatkozó feltehető akaratára és az eset körülményeire tekintettel a szavak általánosan elfogadott jelentése szerint
értenie kellett.
202
Article 207 (2) of the Hungarian Civil Code says: Ha az általános szerződési feltétel, illetve a fogyasztói szerződés tartalma
az (1) bekezdésben foglalt szabály alkalmazásával nem állapítható meg egyértelműen, a feltétel meghatározójával szerződő fél, illetve
a fogyasztó számára kedvezőbb értelmezést kell elfogadni.
206
209. (1) of the Hungarian Civil Code says: Tisztességtelen az általános szerződési feltétel, illetve a fogyasztói
szerződésben egyedileg meg nem tárgyalt szerződési feltétel, ha a feleknek a szerződésből eredő jogait és kötelezettségeit a jóhiszeműség és tisztesség követelményének megsértésével egyoldalúan és indokolatlanul a szerződési feltétel
támasztójával szerződést kötő fél hátrányára állapítja meg.
207
Article 209 (2) of the Hungarian Civil Code says: A feltétel tisztességtelen voltának megállapításakor vizsgálni kell
a szerződéskötéskor fennálló minden olyan körülményt, amely a szerződés megkötésére vezetett, továbbá a kikötött
szolgáltatás természetét, az érintett feltételnek a szerződés más feltételeivel vagy más szerződésekkel való kapcsolatát.
208
Article 209 (4) of the Hungarian Civil Code says: A tisztességtelen szerződési feltételekre vonatkozó rendelkezések
205
77
Regulation of illegal contract provisions in selected countries of the European Union
1.2 of the Directive (Article 209(5) of the Hungarian Civil Code209) have been
implemented in a similar, harmonious way.
While analyzing the effects of applying unfair contract clauses, attention
ought to be paid mainly to the provisions of Article 209A(1) which stipulate
that persons harmed by applying abusive claues in contracts concluded with
them can question such clauses210, which may result in their ineffectiveness ex
tunc.
Particular importance in the Hungarian regulation is ascribed to the
provisions of Article 209A(2), which stipulates that a contractual term which
was suggested by a party concluding a contract with a consumer and which
was not individually negotiated, but only incorporated to a contract as a
standard contract, should be considered ineffective, with the reservation that
inefficiency can only be stated in consumer’s interest211. The quoted regulation
therefore is a reflection of the provision included in Article 6(1) of the Directive,
with a difference that the Hungarian Civil Code extends consumer protection
on all standard contracts and not only on abusive clauses. Moreover, stating
ineffectiveness in spite of meeting the conditions stipulated by law can take
place only to the benefit of a consumer. The abovequoted regulations have been
completed with provisions of Article 239(2) of the Hungarian Civil Code212,
which, similarly to Article 6(1) of the Directive, establishes a principle that in
the cases of finding one clause inefficient, a contract remains binding, if it can
be applied without the inefficient provision. Article 239(1) of the Hungarian
Civil Code extended the saction of inefficiency to the case when parties would
not have concluded the contract at all, if it had not had the provision found
ineffective213.
A significant completion of the European regulation is provided in
the provisions of Article 209B of the Hungarian Civil Code214. They entitle
nem alkalmazhatók a főszolgáltatást megállapító, illetve a szolgáltatás és az ellenszolgáltatás arányát meghatározó
szerződési kikötésekre.
209
Article 209 (5) of the Hungarian Civil Code says: Nem minősülhet tisztességtelennek a szerződési feltétel, ha azt
jogszabály állapítja meg, vagy jogszabály előírásának megfelelően határozzák meg.
210
Article 209A. (1) of the Hungarian Civil Code says: Az általános szerződési feltételként a szerződés részévé váló tisztességtelen kikötést a sérelmet szenvedett fél megtámadhatja.
Article 209A (2) says: Fogyasztói szerződésben az általános szerződési feltételként a szerződés részévé váló, továbbá a
fogyasztóval szerződő fél által egyoldalúan, előre meghatározott és egyedileg meg nem tárgyalt tisztességtelen kikötés semmis. A
semmisségre csak a fogyasztó érdekében lehet hivatkozni.
212
Article 239 (2) of the Hungarian Civil Code says: Fogyasztói szerződés részbeni érvénytelenség esetén csak akkor dől
meg, ha a szerződés az érvénytelen rész nélkül nem teljesíthető.
213
Article 239. (1) of the Hungarian Civil Code says: A szerződés részbeni érvénytelensége esetén az egész szerződés
csak akkor dől meg, ha a felek azt az érvénytelen rész nélkül nem kötötték volna meg. Jogszabály ettől eltérően rendelkezhet.
214
209/B. of the Hungarian Civil Code says: (1) Az általános szerződési feltételként a fogyasztói szerződés részévé váló
tisztességtelen kikötés 209/A. § (2) bekezdése szerinti érvénytelenségének megállapítását a külön jogszabályban meghatározott
szervezet is kérheti a bíróságtól. A bíróság a tisztességtelen kikötés érvénytelenségét a kikötés alkalmazójával szerződő valamennyi
félre kiterjedő hatállyal megállapítja.
(2) A külön jogszabályban meghatározott szervezet kérheti továbbá az olyan általános szerződési feltétel
tisztességtelenségének megállapítását, amelyet fogyasztókkal történő szerződéskötések céljából határoztak meg és
211
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organizations dealing with consumer protection to bring to courts cases
concernig stating inefficiency of abusive clauses ans stating illegality of standard
contracts in the interest of individual consumers and in general interest. It is
also important that courts deciding upon ineffectiveness of contract terms can
pronounce them in favorem tetri (according to Article 209B(1) of the Hungarian
Civil Code). However, contrary to Poland, the so-called extended efficiency of
a judgement concerns only relations between an entity which is a party in a
procedure and all their clients with whom they conclude a contract containing
the questioned provision.
A significant element distinguishing the Hungarian regulation is also the
fact that a consumer organization pleading finding contract clauses inefficient
may demand making the judgement public by publishing it by court at the
expense of an entrepreneur in a daily press215. Therefore, contrary to Poland,
the domestic controller does not create a commonly accessible list of clauses
considered abusive, but particular organizations dealing with consumer
protection prepare such lists only for the purposes of their activity.
Analysis of particular clauses considered abusive
While analyzing the transposition of particular clauses which were
classified as unfair contract terms by the Union’s legislator to the Hungarian
law, it can already be stated prima facie that the Hungarian legislator carried
out a complete transposition of all clauses contained in the Council Directive
No. 93/13. Attention should also be paid to the fact that the Hungarian
legislator granted wider protection to consumers, than it resulted from
guidelines provided by the European legislator, through including a greater
number of clauses which were found abusive in the Hungarian law. Attention
should also be paid to the fact that particular illegal clauses implemented to
the Hungarian law are more intelligible and shorter than those which are
included in the Union’s Directive.
Particular abusive clauses from the subject Directive were implemented to
the Hungarian Regulation of the Government on qualifying dishonest terms
of contracts concluded with consumers in 1999216. Only three abusive clauses
tettek nyilvánosan megismerhetővé, akkor is, ha az érintett feltétel még nem került alkalmazásra.
(3) A bíróság a (2) bekezdés szerinti eljárásban, ha megállapítja a sérelmes általános szerződési feltétel
tisztességtelenségét, azt alkalmazása esetére (a jövőre nézve) - a kikötés nyilvánosságra hozójával szerződő valamennyi
félre kiterjedő hatállyal - érvénytelenné nyilvánítja. A tisztességtelen szerződési feltétel alkalmazója köteles a fogyasztó
igényét az ítélet alapján kielégíteni. A bíróság ítéletében továbbá eltiltja a tisztességtelen általános szerződési feltétel
nyilvánosságra hozóját a feltétel alkalmazásától.
(4) Az (2) bekezdés szerinti per az ellen is megindítható, aki a fogyasztókkal történő szerződéskötések céljából meghatározott és
megismerhetővé tett tisztességtelen általános szerződési feltétel alkalmazását nyilvánosan ajánlja. A bíróság, ha megállapítja
a sérelmes általános szerződési feltétel tisztességtelenségét, azt - alkalmazása esetére - érvénytelenné nyilvánítja, és eltilt az
alkalmazásra ajánlástól.
215
Article 209 (2) and (3) of the Hungarian Civil Code.
216
18/1999. (II.5.) Korm. rend. a fogyasztóval kötött szerződésben tisztességtelennek minősülő Feltételekről; Magyar
Közlöny 1999/9 (II.5.).
79
Regulation of illegal contract provisions in selected countries of the European Union
have been transposed by the Hungarian legislator to the Hungarian Civil
Code of 1959217. These are the clauses marked in the Directive with the letters
a (implemented to Article 342(1) of the Hungarian Civil Code), i (implemented
to Article 207(5) of the Hungarian Civil Code) and p (included in Article 328(3)
of the Hungarian Civil Code). Two abusive clauses marked in the Directive
with the letters j and p have been implemented both to the Civil Code and to
the Regulation. Remaining exemplary illegal contract clauses described in the
Directive have only been implemented to the Regulation.
The Hungarian legislator stated in § 1(2) of the Regulation218 that clauses
marked in the Directive with letters m, o, f, g, d, b, p, n and q will be considered
invalid with the ex tunc effect in contracts concluded between entrepreneurs
and consumers in Hungary. According to § 2 of the Hungarian Regulation219,
clauses marked in the Council Directive with letters h, j, k, c, b and d implemented
to the Hungarian law are to be treated as dishonest terms of contracts until an
entrepreneur proves that this is not the case.
Not all clauses have been implemented to the Hungarian law in a literal
way. For instance, the content of the clause marked with the letter a220 in the
Directive has been considerably modified. The Hungarian legislator included
Article 342(1) of the Hungarian Civil Code221 in the part of the Code governing
liability for inflicted damages. It is clearly visible that the Hungarian legislator
formulated a general principle concerning compensation liabilty which,
contrary to the Directive, applies not only to consumer contracts, but also to
contracts concluded between entrepreneurs. It also should be emphasized that
the sanction of the provision of the Hungarian Code covers also invalidating
a contract clause which limits or excludes liability for damage inflicted by a
consumer. To sum up, it ought to be stated that in the discussed subject the
Hungarian legislator granted legal protection not only to consumers, but also
to other entities participating in economic activity.
The Hungarian legislator acted similarly when they implemented a clause
marked with the letter d of the Union’s Directive. §2 (j) of the Regulation of
1999 namely says that a contract may be found invalid, if it obliges a consumer to pay
an excessiely high amount of money in case of not providing a service or providing it
1959. évi IV. törvény a Polgári Törvénykönyvről; Lezárva: 2006. június 30.; Hatály: 2006.VII.1. - 2009.VI.30. HMJEnglish - Act IV of 1959 - on the Civil Code of the Republic of Hungary.
217
§ 1 (2) of the Hungarian Regulation says: (2) Tilos az olyan feltétel, amely az (1) bekezdés alapján tisztességtelennek
minősül.
219
§ 2 of the Hungarian Regulation says: 2. § A fogyasztó és a gazdálkodó szervezet közötti szerződésben az ellenkező
bizonyításáig tisztességtelennek kell tekinteni különösen azt a szerződési feltételt, amel.
220
Annex 1 (a) of the Dirctive says: (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.
221
Article 342(1) of the Hungarian Regulation says: (1) Semmis valamely szerződésnek az a kikötése, amely a szándékos
vagy súlyos gondatlanságból eredő károkozásért, az életben, a testi épségben, az egészségben okozott károsodásért,
továbbá bűncselekmény következményeiért való felelősséget előre korlátozza vagy kizárja.
218
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
in a way which dos not conform to the subject contract222, while the provision of the
Directive stipulates only that a seller or a supplier cannot withhold amounts
paid by a consumer in cases when they decide not to conclude or not to meet
contractual obligations223.
While transposing the clause marked with the letter f224 in the Directive
(Article 1 § 1(d) of the Regulation225), the Hungarian legislator omitted part of
the provision which said that an unfair contract clause is a provision which
enables a seller or a supplier to withhold amounts paid for services not yet
delivered, when they decide to terminate a contract with a consumer.
The content of the provision § 1(d) of the Regulation226 has also been
governed differently than in the letter g227 of the Union’s Directive. The
Hungarian legislator stated gnerally that a clause may be found unfair, if
it allows an economic entity to terminate a contract at any moment, while
the provisions of the Council Directive stipulate termination of a contract
concluded for an indefinite time period, without due notification, unless there
are serious reasons to do so.
Attention should also be paid to the fact that the abusive clause marked
with the letter n228 in the Union’s Directive has not been implemented literally.
The Hungarian lgislator decided in § (h) of the Regulation229 that not only
limitation, but also exclusion of economic entity’s liability for a co-participant
involved by them in exercising a contract shall constitute an abusive clause.
This transposition should be assessed positively, as the Hungarian legislator
decided to grant wider legal protection to consumers than it is stipulated
in guidelines provided by the European legislator. However, they have not
implemented the part of the Union’s regulation which says that a contract
clause can be invalidated, if it makes a compliance of an obligation depend on
meeting particular formal requirements by a consumer.
A minor change has been introduced while implementing the clause
§ 2 (j) of the Hungarian Regulation says: a fogyasztót túlzott mértékű pénzösszeg fizetésére kötelezi, ha a fogyasztó
nem teljesít vagy nem szerződésszerűen teljesít.
223
Annex 1 (d) to the Directive says: (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.
222
Annex 1(f) to the Directive says: (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.
225
1. § (1) of the Regulation says: A fogyasztó és a gazdálkodó szervezet közötti szerződésben tisztességtelennek minősül különösen az a szerződési feltétel, amely: (d) lehetővé teszi, hogy a gazdálkodó szervezet a szerződéstől bármikor elálljon, vagy azt
felmondja, ha a fogyasztó ugyanerre nem jogosult.
226
§ 1 (d) of the Hungarian Regulation says: lehetővé teszi, hogy a gazdálkodó szervezet a szerződéstől bármikor elálljon, vagy
azt felmondja, ha a fogyasztó ugyanerre nem jogosult.
227
Annex 1 (g) to the Union’s Directive says: (g) enabling the seller or supplier to terminate a contract of indeterminate
duration withoutreasonable notice except where there are serious grounds for doing so.
228
Annex 1 (n) to the Directive says: (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.
229
§ 1(h) of the Hungarian Regulation says: h) kizárja vagy korlátozza a gazdálkodó szervezetnek az általa igénybe vett
közreműködőért való felelősségét.
224
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Regulation of illegal contract provisions in selected countries of the European Union
marked with the letter q230 in the Directive. In this case, the Hungarian legislator
stated generally in § 1 (i) of the Regulation231 that as an abusive clause shall
be considered a contract provision which limits or excludes using means
safeguarded by law or by arrangements between parties, while the Directive
quotes in a more detailed manner all provisions which shall constitute such
infringement of consumers’ interest.
Remaining abusive clauses marked in the Union’s Directive with the letters
b, c, e, h, i, j, k, l, m, o and p have been literally implemented to the Hungarian
law by the Hungarian legislator, with the spirit and objective of the subject
Directive preserved. Finally, a minor change has been introduced concerning
the transposition of the provision marked with the letter h232 in the Directive,
where the Hungarian legislator introduced a minor change to § 2 (c) of the
Regulation233, deciding upon an unreasonably short term for performing
certain actions, while the Directive contains a provision concerning an
absolutely short term for performing certain actions.
To sum up the analysis, the transposition carried out by the Hungarian
legislator does not vary considerably from guidelines provided in the Directive
93/13. Attention is drawn in particular by the transposition of all abusive clauses
to the Hungarian legal system. It is also worth emphasizing that modifications
introduced to the transposition are not numerous and omissions of parts of
provisions by the Hungarian legislator occur very rarely, as a result of which
the transposition as a whole has to be assessed positively.
6.3. Jurisdiction concerning consumer protection and finding
the provisions of standard contracts illegal
The Hungarian legislator ensured a wider legal protection to consumers in
the domestic legislation than it could be expected from guidelines provided
in the Directive. In relation to a thorough reform of the Hungarian Civil
Code introduced in 2006, in particular to an amendment of legal provisions
concerning stating abusiveness of contract clauses, Hungary has not yet
Annex 1 (q) to the Directive says: (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.
230
§ 1(i) of the Hungarian Regulation says: i) kizárja vagy korlátozza a fogyasztó jogszabályon vagy a felek közötti
megállapodáson alapuló igényérvényesítési lehetőségeit, kivéve, ha azt egyben más, jogszabályban meghatározott vitarendezési móddal helyettesíti.
232
In Annex 1 (h) to the Council Directive No. 93/13 says: 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.
233
§ 2 (c) of the Hungarian Regulation says: c) meghosszabbítja a határozott időre kötött szerződést, ha a fogyasztó másként nem
nyilatkozik, feltéve, hogy a nyilatkozat megtételére nyitva álló határidő ésszerűtlenül roved.
231
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managed to develop a complex jurisdiction concerning consumer protection
and finding the provisions of standard contracts illegal. It also has to be
pointed out that there is no common system functioning in Hungary, which
would register clauses considered unfair, detrimental to consumers and
noncompliant with the Hungarian law. An entity which strongly influences
the Hungarian consumer market is the Association for Consumer Protection.
Unfortunately, it was established that the Association has not succeeded much
concerning the elimination of abusive clauses. It results i.a. from limited
funds of the Association for pleading court actions. The European Consumer
Centre (Európai Fogyasztói Központ Magyarország) functioning in Hungary
maintains a list of abusive clauses solely for its needs and does not make it
publicly available. In cases concerning telecommunications in Hungary,
the National Telcommunications Supervision deals with finding clauses
potentially abusive. The Supervision in its competence carries out proceedings
in cases concerning finding clauses used by entities operating on a given
market noncompliant with the provisions of Hungarian law. Judgements of
Hungarian courts concerning consumer protection, as well as verdicts stating
unfair character of clauses included in contracts between entrepreneurs and
consumers are made public up to date in press. Therefore, there is no publicly
available register of clauses found illegal, which is mainained in Poland.
The situation of a consumer in current affairs, in case of applying a clause
detrimental for them, can be changed only in the course of a standard court
procedure, according to Article 209 A234 and 209 B235 of the Hungarian Civil
Code. Every contract clause may be questionned by a contractual party in a
court which, while stating abusiveness of a particular provision, according
to the content of Article 209 A(2) of the Hungarian Civil Code, should decide
to the favour of a consumer and not an entrepreneur. At this point, it is
Article 209 A of the Hungarian Civil Code says: (1) Az általános szerződési feltételként a szerződés részévé váló tisztességtelen kikötést a sérelmet szenvedett fél megtámadhatja.
(2) Fogyasztói szerződésben az általános szerződési feltételként a szerződés részévé váló, továbbá a fogyasztóval szerződő fél által
egyoldalúan, előre meghatározott és egyedileg meg nem tárgyalt tisztességtelen kikötés semmis. A semmisségre csak a fogyasztó
érdekében lehet hivatkozni.
235
Article 209 B of the Hungarian Civil Code says: (1) Az általános szerződési feltételként a fogyasztói szerződés részévé váló
tisztességtelen kikötés 209/A. § (2) bekezdése szerinti érvénytelenségének megállapítását a külön jogszabályban meghatározott szervezet is kérheti a bíróságtól. A bíróság a tisztességtelen kikötés érvénytelenségét a kikötés alkalmazójával szerződő valamennyi félre
kiterjedő hatállyal megállapítja.
(2) A külön jogszabályban meghatározott szervezet kérheti továbbá az olyan általános szerződési feltétel tisztességtelenségének megállapítását, amelyet fogyasztókkal történő szerződéskötések céljából határoztak meg és tettek nyilvánosan megismerhetővé, akkor is, ha az érintett feltétel még nem került alkalmazásra.
(3) A bíróság a (2) bekezdés szerinti eljárásban, ha megállapítja a sérelmes általános szerződési feltétel tisztességtelenségét, azt alkalmazása esetére (a jövőre nézve) - a kikötés nyilvánosságra hozójával szerződő valamennyi félre kiterjedő hatállyal - érvénytelenné
nyilvánítja. A tisztességtelen szerződési feltétel alkalmazója köteles a fogyasztó igényét az ítélet alapján kielégíteni. A bíróság ítéletében továbbá eltiltja a tisztességtelen általános szerződési feltétel nyilvánosságra hozóját a feltétel alkalmazásától.
(4) Az (2) bekezdés szerinti per az ellen is megindítható, aki a fogyasztókkal történő szerződéskötések céljából meghatározott és megismerhetővé tett tisztességtelen általános szerződési feltétel alkalmazását nyilvánosan ajánlja. A bíróság, ha megállapítja a sérelmes általános szerződési feltétel tisztességtelenségét, azt - alkalmazása esetére - érvénytelenné nyilvánítja, és eltilt az alkalmazásra ajánlástól.
234
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worth quoting a decision of the City Court in Szeged236, which explained the
character of abusive clauses. This decision is at the same time an important
interpretational guideline for other bodies. This court stated that at the level
of a general clause an illegal contract provision has two elements. One of them
is the fact that the party preparing contract terms infringes the principle of
acting in good faith (a subjective element), as a result of which the rights and
obligations under a contract are groundlessly established to the detriment
of the other party. This situation infringes the principle of the balance of
contractual rights and obligations and causes an imbalance regarded as the
second element (an objective element) deciding about abusiveness. Lack of
proportions however does not occur between a service and a consideration,
it does not concern shaping establishing prices either. Faultiness of a contract
therefore does not result from an imbalance of value, but it is connected with
lack of equal rights of contractual parties.
It is worth pointing out that consumer organization may also, according
to Article 209 B of the Hungarian Civil Code, question the fairness and
compliance of a contract clause with the provisions of the Hungarian law,
not only in a specific commercial contract, but also in a commonly applied
standard contract in relations of a given kind. Such abstract control of a
consumer organization may assume the form of actio popularis, which is
legal action instituted by a given entity in common interest. The fact that a
court decides about abusiveness of particular contract clause, in the course
of an action instituted in common interest, may at the request of a consumer
organization be made public and exercise influence in the future.
Deciding that a contract clause is noncompliant with law, a court may,
if it finds it necessary, publicly prohibit applying it in the future, not only
concerning a model applied in contracts between the same parties, but also
as standard standard contracts applied in contracts of a given kind237. A court
may also state that a specific unfair contract clause will be considered void and
having no legal power ex tunc, not only in specific commercial contracts, but
also in relation to all participants of legal relations in which it was applied238.
While analyzing the Hungarian jurisdiction concerning services of general
interest referring to the scope of protection of granted consumers and finding
the provisions of a standard contract illegal, an interesting judgement of the
City Court in Szeged of 9 March 2000 ought to be quoted (3.G.40.009/2000/3.),
in which the following contract clause included in General Terms of gas
supply was found illegal and as a result ineffective: The principles of calculating
charges for gas used will be determined by the service provider in their statutes. As
a result, if there is a gas meter installed in the place of gas consumption, the service
City Court in Szeged P. 23 454 /1999/25.
Article 209 B (3) of the Hungarian Civil Code.
238
Article 209 B (4) of the Hungarian Civil Code.
236
237
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provider will take a reading from the gas meter once in three months and in the period
between readings they will issue monthly invoices. An invoice not supported by a
precise reading from the gas meter is based on calculations considering custom and
the conditions of using gas by the customer. The statutes of the service provider are
available for customers in customer service office and everyone may become familiar
with them. The court decided in the subject case that inserting the quoted
abusive clause in paragraph 11 of General Terms of gas supply by DÉGÁZ
Rt., which is the only gas supplier in the region of the southern Hungarian
lowland, is detrimental to consumers, due to a way of calculating services
which is contrary to law.
In the field of services of general interest concerning solid waste disposal
and sewage waste disposal, attention ought to be paid to a settlement of 9
February 2006 which was a result of a long legal action (from November 2003)
between Remondis Szolnok Rt. and the National Association of Consumer
Protection, according to which consumers were warranted the possibility to
choose a proper size of a waste container from among 80-120-240-1100 litre
containers, provided that the lid of a container will be closed between particular
times of removing waste by the sued Remondis Szolnok Rt. company, which
was justified by environmental issues. Moreover, in the next settlement of 8
March 2006 Remondis Szolnok Rt., sued also by the National Association of
Consumer Protection, having the exclusive right to dispose solid waste in the
city of Szolnok, obliged not to apply different terms to particular consumers
using the same service, unless a resolution of the City Council does not decide
otherwise.
The Hungarian court found that a clause was unfair, as it said that charges
for sewage waste include the costs of envisaged penalties for effluent imposed
on service providers. In the subject case, the National Association of Consumer
Protection brought proceedings agains the Fővárosi Csatornázási Művek
Rt. company, as a contract provision formulated this way was unfair and
detrimental to consumers, shifting to them the burden of obligations which
belonged to the service provider.
In the field of telecommunications services, attention should be paid to
a judgement of the Hungarian Capital City Court, which said that General
Contract Terms and Conditions of a mobile communications operator Vodafone
Magyarország Mobil Távközlési Rt. are invalid, as they included a provision
which stipulated that as of 10 February 2003 the sued company had the right
to limit services depending on data traffic. The Hungarian court decided that
the qustionned clause could not be applied n consumer contracts, as it was
contrary to the provisions of Hungarian law, it was detrimental to consumers
and applying it by entrepreneurs was unfair, as a result of which the complaint
has to be considered as a whole.
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In relation to contracts concerning the provision of telecommunications
services, it is virtually a rule that operators apply clauses which allow them to
block the possibility to make calls, in cases when consumers do not make timely
payments of their telephone bills, which was for obvious reasons found unfair
by a Hungarian court. A judgement issued by the Court239 in an action brought
by the National Telecommunications Supervision may serve as an example at
this point, in which a clause included in General Terms and Conditions by the
Vodafone Rt. company was found abusive, as it limited consumers’ access to a
service in cases when the amount of a charge not yet paid for service exceeds
an individually established a threshold amount which is at least 16’2150,00
HUF for particular subscribers. The Hungarian court ordered that the sued
party should modify this contract term, as it enables the service provider to
unilaterally cease to provide service after specific conditions, unfavourable
for subscribers, occur. The court stated that this condition had a subjective
character, it was not transparent for subscribers and consequences it caused
were not objective. Moreover, derogation from applicable legal provisions
in general contract terms can occur only in situations when it is explicitly
allowed in regulations or when parties to a contract explicitly allow it and
derogations act to the favour of subscribers. According to the Court, this
clause was contradictory to the provisions of the Hungarian law, i.e. to § 207
(2) of the Hungarian Civil Code240 (Article 5 of the Directive) and § 2 (e) of the
Regulation of 1999241 (Annex 1 (k) to the Directive), as a result of which it could
not be applied in contracts with consumers.
A similar judgement was issued by the Court242 in an action against Magyar
Telekom Távközlési Nyrt, which stateted noncompliance of provisions of
paragraph 9.2.4. of Chapter V of General Contract Terms and Conditions with
the Hungarian law243. The quoted contract provision was found abusive, as a
No. HS-1054-11/2006.
§ 207 (2) of the Hungarian Civil Code says: (2) Ha a fogyasztói szerződés tartalma az (1) bekezdésben foglalt szabály
alkalmazásával nem állapítható meg egyértelműen, a fogyasztó számára kedvezőbb értelmezést kell elfogadni.
241
§ 2 (e) of the Hungarian Regulation says: lehetővé teszi, hogy a gazdálkodó szervezet egyoldalúan, alap os ok nélkül a
szerződésben meghatározott tulajdonságú szolgáltatástól eltérően teljesítsen.
242
No. HS-4305-8/2006.
243
Paragraph 9.2.4. Chapter V of General Contract Terms and Conditions says: „9.2.4. Special principles concerning termination of a contract – except for the provisions of paragraph 9.2.3. – apply when charges remain unpaid by subscribers
a) In order to meet the obligation of minimizing lossess, the Service provider – who simultaneously notifies a subscriber in writing
– is entitled to limit outdooring calls of a subscriber, if outstanding payments exceed 20.000- forints in case of individual subscribers
and 90.000- forints in case of institutional subscribers. Threshold amounts determined in this paragraph are multiplied amounts of
an average invoice amount for a given category of subscribers, exceeding of which the Service provider is obliged to minimize under
the provisions of the Civil Code.
b) If a subscriber determined while concluding a contract that they shall have access to calls of raised tariffs and within first three
months from the day of concluding a contract yearly turnover exceeded 100.000- forints in case of individual subscribers and
300.000- forints in case of institutional subscribers, than the service provider, in order to prevent loss, has the right to limit outdooring calls of a subscriber, with notifying a subscriber, unless a subscriber has not previously provided a proper pledge.
c) If a subscriber does not make timely payment of charges for calls of raised tariffs (06-90), than the service provider has the right
to exclude the possibility to make calls of raised tariffs, as the open term for paying an invoice finishes. The service provider does not
have right to limit the possibility of making other calls or to terminate a contract only on the basis of outstanding payments resulting
from charges for calls of raised tariffs.
d)The service provider has the right to remit whole or part of outstanding payments of an individual subscriber, if outstanding
239
240
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service provider may limit access to services only in cases when a subscriber
does not make due payments, even after the lapse of minimum 30 days for
payment determined in a request for payment.
It is also worth paying attention to the decision of the Antimonopolistic
Council by the Antimonopolistic Office of 10 June 2004, by which it stated
that a clause concerning the packages of cable television included in General
Contract Terms and Conditions of the FiberNet Kommunikációs Rt. company
is unacceptable, as it stipulates that: ‘the service provider may unilaterally decide
to introduce new channels to the package, which results in a considerable rise of
subscribers’ costs’. The Council expressed an opinion that a contract clause
formulated this way is detrimental, as a result of which it could not be applied
in consumer contracts. Moreover, the Council also stated abusiveness of a
clause according to which the FiberNet Kommunikációs Rt. company applied
from 1 January 2003 charges for travelling to clients which were a lot higher
than in companies providing similar services (4’000,00 HUF + VAT). In the
subject case thae Council pointed out the fact that such a drastic raise of
charges, considerably exceeding the inflation rate, ensured big profits for
the company, which resulted from shifting the costs of their own activity to
consumers, saying that: ‘planned investments cannot a legal basis for raising
charges’.
As concerns the sector of general interest concerning transport services,
attention should be paid to a judgement issued by the Hungarian Capital
City Court (no. 6.P.27.132/2004/11.), stating illegality and invalidity of a clause
included in General Contract Terms and Conditions applied by Magyar
Légiközlekedési Rt. (Hungarian Airlines), according to which the company
included charges for issuing a plane ticket to the price of a ticket from 1
February 2004. The court decided that a contract provision formulated this
way was noncompliant with law, was detrimental to consumers and moreover
was not binding, as consumers could not affect its content, since the clause was
presented to them in the form of a previously prepared standard contract.
A similar opinion was expressed by the Capital City Court in a judgement
no. 7.G.41.775/2004/11, saying that the following clause was noncompliant
with legal provisions: ‘Autocasco insurance does not cover cases when a
registration certificate of a vehicle is inside a vehicle at the time when theft
occurs’. The court decided that the questionned General Contract Term
applied by the sued Allianz Hungária Biztosító Rt. insurance company was
detrimental to consumers, as a result of which applying it in contracts was
payment results from external causes which are difficult to predict and avoid (flood, earthquake, fire in the forests etc.), a change in
material and financial situation of a subscriber, which make it impossible to make invoice payments. The service provider will remit
due payment only in cases when a subscriber made previous payments in time and they are able to credibly confirm a change in their
situation and warrant that their income does not exceed minimum wage”.
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illegal. Moreover, the court stated that in the subject case a consumer could
not influence establishing the content of this unfair close, neither was it
individually negotiated, but it was presented to the consumer as a standard
contract applied in contracts of a given kind.
While analyzing jurisdiction concerning abusiveness of contract clauses,
reference should also be made to judgements concerning the field of particular
interest of consumers – the construction industry. Therefore, in reference to
services concerning brokerage by real estate sales, attention should be paid to
a judgement of the Hungarian Constitutional Tribunal no. 2/2005 (a qualifier
of the Hungarian system of legal information EBH 2005.1333.), according
to which the provisions of a Hungarian Act no. CXVII (2000. évi CXVII.
törvény rendelkezései nem alkalmazhatók ) of 2000 do not apply to contracts
concerning brokerage by real estate sales. The Tribunal decided in the subject
case that it is illegal to include a provision in a job order contract, according to
which a consignee is entitled to receive a commission even in situation when
a real estate is bought by a client not introduced by a consignee. Moreover, the
Tribunal stated that a provision which stipulates that a consignee is entitled to
receive a commission, even if a consignee sells their real estate single-handedly
after lapse of a specified time period from the date of the expiry of a contract,
is noncompliant with the provisions of a contract concerning the brokerage by
real estate sales.
In another judgement244 the court found illegal the provisions of a contract
concerning construction works, which entitled an entrepreneur to question
unit prices in an indefinite time period245. The court pointed out in paricular
that there may occur such compulsory economic circumstances, due to which
an entrepreneur is not yet able to determine and include in a contract all unit
prices for particular kinds of works constituting the final price at the moment
of concluding a contract for general performance. A service provider, as well
as the ordering party, is not able to predict in advance all circumstances which
may result from variable economic conditions. However, it is expected of
contractual parties that they determine possible consideration for performed
works. Having regard to this fact, the subject clauses ought to be considered as
BH1987.246.
P. 2 of the contract: ‘After carrying out the application procedure, the abovementioned consideration is changed into an amount
established by the parties.’
P. 25 of the contract: ‘Parties to the contract establish that a contractor may notify their reservations concerning the obtained tender
documentation in the following manner:
...II. Reservations concerning unit prices:...
b) in relation to employers who are not obliged to conclude contracts, except for subcontracting and supplies until ... 19..
. the service provider is obliged to submit to an investor for approval all reservations concerning unit prices notified by
individual subcontractors, suppliers and other participants of the investment process within 30 days from the date of
receiving them. the time for considering reservations by an investor is 30 days. a service provider sends reservations
concerning unit prices in 7 copies, 4 of which are to be signed by authorized persons representing the investor and sent
back to the service provider within 30 days, or else the right shall be annuled. in the cases when their opinions are different, the parties shall make arrangments at the request of the service provider’.
244
245
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noncompliant with legal provisions. Moreover, the court decided that contract
terms formulated this way enable a general contractor to unilaterally modify
a contract, which could result in obtaining unilateral benefits. However, the
court did not exclude a situation in which a particular case may occur when a
contractor does not know their subcontractors at the moment of concluding a
contract and exercising a contract at an agreed price would infringe relevant
interests of a contractor. In such cases it may be justified to conclude such
an agreement with an ordering party which may consider shaping a final
contractual price on the basis of the opinions of subcontractors, suppliers and
other participants of an investment process. All this does not change the fact
that the above clauses cannot be applied as general contract clauses. The court
questioned another provision of this contract which, in cases of the occurence
of savings while performing works based on more proper technical solutions,
allows to divide them between the initiating party and the party agreeing
to introduce suggested changes246. In reference to this provision the court
stated i.a. that the amount of savings resulting from applying a more rational
technical solution has been divided in a contract in a way which was contrary
to applicable provisions and it ensured unilateral benefits. Due to this fact,
this clause was found illegal.
A large group of judgements is made up of decisions of Hungarian courts
which prohibit to apply such clauses in General Contract Terms and Conditions
in consumer contracts that allow banks to terminate credit contracts without a
reason, even when clients meet their contractual obligations in a proper way.
At this point, it is worth quoting a judgement of the Capital City Court247 which
found abusive a clause included in General Contract Terms and Conditions in
a credit contract for purchase of a passenger car or a small delivery van, which
said: ‘The Bank is entitled to terminate this contract with an immediate effect, if the
Debtor infringes any of their obligations under this contract, or if the Bank notices
risks for the payment of a credit.’ In this particular case, the defendant, on the
basis of General Contract Terms and Conditions, grants a loan to the debtor
for a partial financing of the purchase price of a car and the debtor acquires
the ownership right to a vehicle through concluding the purchase contract for
sale of goods with a selling party. A conditional contract is an integral part of a
credit contract and says that security of payment obligations of the purchasing
party is the ownership right to a vehicle. The Hungarian court decided that
formulating the content of a contract provision this way enables a bank to gain
unjustified profits, which means that it may be interpreted to the detriment of
P 48. of the contract: ‘The parties agree that in cases of the occurence of savings while performing works based on more proper
technical solutions – after deducting the costs of exchange and other applicable costs – they will be divided in the following manner:
the party initiating introducing technical modifications will receive 80% of the savings amount and the party agreeing will receive
20% of this amount. Interim works performed in this manner will be calculated by the parties according to the principles of the free
market and in compliance with applicable regulations/’.
247
No. 2.Gf.75 980/2001/14.
246
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Regulation of illegal contract provisions in selected countries of the European Union
a consumer and furthermore it makes it possible to terminate a contract for no
reason, even to a client who meets their contractual obligations248. At the same
time, in case of terminating a contract for reasons different than infringing
its provisions, this term excludes the possibility to claim amounts already
paid by the weaker party, as a bank, using the conditional, may take over the
ownership right to a vehicle. A clause formulated this way is not compliant
with § 209 A249 and § 209 B (1) and (2) of the Hungarian Civil Code250 (Article
3(1) of the Directive) and cannot be applied in consumer contracts.
A decision of the Capital City Court of First Instance251 is also worth
quoting, as it finds invalid a contract clause included in general terms of a
lease contract which said that with the expiry of a lease contract, a concluded
insurance contract expires automatically as well. In the commented case
plaintiffs pleaded to court for stating invalidity of the provisions of General
Contract Terms and Conditions applied by the defendant in a lease contract
prepared on a typical contract form (so-called blank contract) which concerned
insurance. They pleaded the fact that plaintiff, violating the principle of acting
in good faith, while determining contract terms concerning conclusion,
duration and termination of insurance, did not make allowance for their
interest, but some terms were explicitly, in a unilateral and unjustified way
established to the detriment of a lessee. They stated that clauses which do not
entirely express the interest of the lessee party should be found illegal and
that profits from the insurance resulting from the leasing contract belong to
the lessor, while obligations belong only to the lessee. At the same time, the
lease contract does not consider lessee’s interest which are present regardless
of a lease contract in order to ensure insurance protction. The Court decided
that the questioned contract provisions are contrary to § 209 A and § 209 B (1)
and (2) of the Hungarian Civil Code and that they are invalid.
6.4. Comparing the Hungarian and Polish transposition
The transposition of the Directive 93/13 carried out by the Hungarian
legislator seems to be the most correct one in technical terms of all so far
assessed. The Hungarian legislator made an effort and transposed particular
In Poland such rights are given to banks not on the basis of a contract, but directly under the Banking Act.
§ 209 A of the Hungarian Civil Code says: A fogyasztói szerzõdés tisztességtelen kikötését a fogyasztó megtámadhatja akkor
is, ha az nem minõsül általános szerzõdési feltételnek.
250
§ 209 B (1) and (2) of the Hungarian Civil Code say: 209/B. § (1) Tisztességtelen az általános szerzõdési feltétel, illetve a
fogyasztói szerzõdés kikötése, ha a jóhiszemûség követelményének megsértésével a feleknek a szerzõdésbõl eredõ jogosultságait és
kötelezettségeit egyoldalúan és indokolatlanul az egyik fél hátrányára állapítja meg.
(2) Egyoldalúan és indokolatlanul hátrányos a jogosultságok és kötelezettségek meghatározása különösen, ha
a) a szerzõdésre irányadó lényeges rendelkezéstõl jelentõsen eltér; vagy
b) összeegyeztethetetlen a szerzõdés tárgyával, illetve rendeltetésével.
251
No. 4.Gf.75 026/2001/10.
248
249
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provisions of the Directive in appropriate places to the Hungarian legal
system. This means that procedural provisions have been included in the
act concerning procedures, substantive law provisions have been included
in particular parts of the civil code etc. As it has been indicated above, the
Hungarian legislator unfortunately did not manage to avoid certain mistakes,
however these are not irregularities serious enough to affect the quality of the
entire Hungarian transposition.
A novelty worth approving in the Hungarian regulation is granting active
standing to consumer organizations. In Poland similar judicial rights result
from the content of Article 61 § 1 of the Code of Civil Proceedings, but the
practice does not prove that organizations use this right in a broader scope.
Analysis of the collected jurisdiction allows to draw a conclusion that
scale of applying abusive clauses by entrepreneurs in consumer contracts
is very big in Hungary. It often happens that particular contract clauses are
formulated in a way that it is difficult to recognize at first that thay are unfair,
contrary to the provisions of Hungarian law or that they are detrimental
to consumers. Only a thorough analysis of a particular case by court may
provide the answer to whether a contract clause is illegal or not. A drawback
of the Hungarian system of protection granted to consumers is the fact that
the National Association of Consumer Protection does not maintain a general
register of clauses considered abusive by Hungarian courts, which would
assuredly make it easier for consumers to realize whether a particular contract
clause is detrimental and to possibly bring action in order eliminate it from
the legal system.
To sum up the consideations, it should be noticed that the implemntation
carried out by the Hungarian legislator deserves special acknowledgement
and belongs to the best ones in Europe, next to the French and British ones. It
is also a very good example of how a transposition of a Directive to a domestic
legal system should be carried in technical terms.
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CHAPTER III
Assessment of solutions regarding abusive clauses in selected countries
1.
The European consumer among different legal regimes concerning
abusive clauses
A research carried out in frames of this study allows to draw general
conclusions. Before opinions concerning normative and constructive features
of regulations concerning abusive clauses in particular countries can be
formulated, as well as those concerning the methods of transposition and
specific features of jurisdiction, it is necessary to comment on issues relevant
not only from the point of view of researchers, lawyers or theoreticians, but
from the point of view of consumers. Approaching the problem from this
perspective, the utility of regulating the issue of abusive clauses in Europe does
not give optimistic prospects. In order to prepare the study, authors needed to
reach materials and sources which seemingly should be easily available to an
average user of consumer protection rights, which is a consumer themselves.
Unfortunately, it turned out that obtaining information on the regulation
of this area of law is relatively difficult and in many cases it is impossible.
Materials were obtained through Polish embassies in given countries,
scientists and lawyers coming from these countries, consumer organizations,
administration authorities whose statutory duty is to protect consumers, EU
institutions and even the Internet. Although obtaining information involved
professionals (lawyers, translators etc.), it was very difficult to receive credible
data. These difficulties occured when requesting information, information was
provided about the purpose of the study, but also when attempts were taken
to obtain information in the character of consumers. This means that, since
it was so difficult for “professionals” to obtain information, the situation of
average consumers, especially those who did not speak the language, had no
appropriate contacts and did not have professional knowledge is much worse.
As concerns the availability of source materials, it is worth emphasizing that
it is much easier to obtain relevant materials from England (there are vast
studies devoted to abusive clauses published in that country) and France. As
far as France is concerned, it also has to be added that the way of presenting
information about abusive clauses considers the needs of consumers much
more than in different countries. It is relatively easy to gain access not only
to particular legal regulations, but also to judgements of different instances,
which contain not only frangments of judgements, but are also often arranged
according to certain criteria and moreover, many judgements are discussed in
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
a form comprehensible to public. This way of presentation deserves a special
acknowledgment, as it allows to understand the essence of a prohibited
provision and of motives which a court followed by issuing a given judgement.
As it turned out, it is not easy to gain access to judgements in Germany. In
this country consumers may use specialized consumer organizations which
usually offer assistance and help in problematic situations, therefore there is
no tendency for consumers to solve problems single-handedly. The situation
looks much worse in the countries of so-called “new EU”. It is very bad in
the Czech Republic, where, in spite of involving one of the deans of the Legal
Department of the Masaryk University in Brno, it was not possible to obtain
a representative jurisdiction. It is very difficult to obtain information about
abusive clauses in this country and the power of consumer organizations is not
strong enough to support consumers on an appropriate level. The introduced
regulation for illegal contract provisions is of temporary nature and does not
itself constitute a suficient tool to fight with entrepreneurs who abuse their
dominance. The situation in Slovakia looks similarly unoptimistic, which has
been discussed in previous chapters. However, the regulation and availability
of pro-consumer judgments in Hungary have to be assessed positively.
The situation of Poland is good in comparison with these countries. Big
credit in this field needs to be assigned to the Office of Competition and
Consumer Protection, which makes a register of abusive clauses available
on its Internet page. Moreover, on these pages, as well as on the pages of
consumer organizations, there are many publicatins to be found concerning
abusive clauses and this is not a matter of bigger availability due to language
command. It can be said that in this field Poland is ahead not only of the
Czech Republic and Slovakia, but also Hungary and Germany. The situation
in Poland does not differ a lot from France and England, which, regarding
a relatively short history of domestic regulation of abusive clauses and little
experience needs to be considered a success.
A basic difficulty for consumers in obtaining information on solutions
adopted in particular countries is the language barrier. In case of this study
it was bigger, as the analysis covered several legal systems, which made it
impossible to create a so-called mini-glossary of terms characteristic for all
regulations. In studies concerning the comparison of different legal systems
it is advisable to create categories common for compared systems, so that
the designates of particular terms do not differ from one another. In case
of examining a few systems in such a short study, creating an appropriate
glossary of basic terms, due to legal cultures which are very different from
each other, different principles of legal systems, methods of interpretatio etc. is
basically impossible. The problems which had to be dealt with in undertaken
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research are absolutely unsurmountable for consumers.
To sum up, it needs to be stated that although the regulations of abusive
clauses in particular countries are based on the same Directive and serve
the same purposes, it is not easy for consumers from different countries to
use normalization from a foreign country. They will have big problems to
get access to information about appropriate acts and judgements. They will
rather receive no help from embassies or consumer organizations. Therefore
they will be aware that they have the right to refer to widely understood
abusiveness, the barrier will always consist in no knowledge about how to
do it, what to refer to and what information and sources to use. It can be said
that differences of all countries decide about a failure of European regulation,
one of whose goals was to facilitate the movement of goods and services.
Differences in legal systems and in cultures of selected Member States of the
EU are still significant and in spite of formal unity of regulation principles
they do not allow an appropriate dose of individuality. And this is not only a
matter language or culture of a given country.
2.
Similarities and differences in the legislations of selected countries
– an attempt to distinguish basic models of the transposition of the
Directive 93/13
Passing on to conclusions of a construcive nature, it has to be stated in the
first place that there are two ways of trasposing the Directive 93/13 which can
be distinguished. The first one may be called “an author’s way”. It is based
on an actual translation of the principles of the Directive to the relations
characteristic of a given country and on creating a complete and consistent
regulation. This kind of approach is typical of the French regulation, with a
complex system of authorities which are supposed to protect from abusive
clauses (Council of State, Commission for Abusive Clauses assembling
representatives of consumers and entrepreneurs), as well as a specific legal
construction. Such solution has also been applied in Germany. However, it
differs a lot from French standards, but is undoubtedly very characteristic.
The British regulation is basically a repeated Directive and does not seem to
be very innovatory in this respect. It ought to be remembered however, that
the nature of a Directive, as a postulating act which indicates a direction and
avoids ready solutions, perfectly fits the common law system, in which general
and postulative contents are turned into concretes by practice and not by the
legislator. It is important that this practice in England is very developed, and as
it should be in a legal system based to a great extent on precedents, judgements
are relatively easy to access. As concerns the analysis of a country belonging
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to the so-called former Eastern block, the way of transposition adopted there
can be called a translatory one. It is based on a simple translation of the text
of a Directive into the language of a given country252. However, in case of the
“new Union” countries, this translation is carrid out more or less carefully and
has different consequences. As it has already been mentioned, it seems to have
been carried out least carefully in the Czech Republic. A certain conception
– of more than a simple translation – can be noticed in the Hungarian
transposition. This country made an attempt to order the Union’s regulation
and to transpose its particular provisions to domestic regulations included in
relevant parts of the existing legal acts. Such operation has not been carried
out in Poland. The whole regulation of abusive clauses has been basically
included in Articles 3851 – 1353 of the Civil Code and in one chapter of the
Code of Civil Proceedings, although the issue of e.g. onus probandi could have
been included in more suitable places. In these terms, the already mentioned
Hungarian regulation has to be perceived as exceptionally accurate, which
does qualify as a translatory transposition, but introduced modifications have
been implemented in a very interesting way. It can be seen in the example of
the transposition of the list of clauses suspected of abusiveness, included in
the Annex to the Directive. Transposing them to the Hungarian legal system
enabled to order particular clauses, to shorten them and to make them more
intelligible without losing the essence.
3.
Polish consumer in the face of abusive clauses in the EU countries
Problems indicated above which were encountered by the authors of this
publication indicate that an avrage consumer has little chance to receive
reliable help in case of concluding a contract with a dishonest entrepreneur
from a different country. The analyzed Directive, although its idea was to
order and unify the European legal system, caused a significant improvement
in the protection in particular countries, but it seems not to exercise a strong
influence on the European market as a whole. Obtaining help by a consumer
and information concerning abusive clauses in particular countries, although
difficlult, is not impossible. Therefore, it is worth indicating institutions and
places where consumers will be able to obtain essential help.
In Great Britain every consumer may request assistance from Consumer
Direct253. It is a government institution ensuring a complex network of offices, as
well as a very good telephone and Internet service available for all consumers.
In this sence, paradoxically, the English transposition is the most translatory one, as turns out to be virtually
a reflection of the Directive.
253
Http://www.consumerdirect.gov.uk/.
252
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OFT described in this study unfortunately does not deal with individual cases,
sending consumers directly to Consumer Direct. A very important element of
the British consumer protection system are newsletters published every month
by OFT254 which contain provisions found unfair by OFT or only suspected of
unfairness, from applying which entrepreneurs withdrew voluntarily.
In France a list of abusive clauses can be found on the Internet pages of the
Commission for Abusive Clauses255. Every consumer may request help from
the European Consumer Centre256. However, it is necesary to speak French
in order to contact them and to obtain legal assistance. The employees of this
organization do speak English, but holding a telephone conversation in this
language is extremely difficult.
As it has been indicated above, there is no nationwide list of abusive clauses
available in Germany. Registers containing clauses applied in particular areas
are maintained by specialized social organizations. As in the majority of EU
countries, information on these organizations can be most easily found in the
Internet, but no command of at least basic German can make it very difficult
for a consumer to make their lawful claims. Similarly to France, the main
organization providing assistance to consumers harmed by unfair contract
clauses applied by entrepreneurs is the European Consumer Centre257.
Assistance may be obtained in the European Consumer Centre258 also in
the Czech Republic. Unfortunately, this centre does not maintain a register of
abusive clauses and potential protection can be sought only in the course of
individual legal action. This situation may be changed by an amendment of
consumer law planned for middle 2007, which is supposed to extend the rights
of consumer organizations, so that they can represent consumers in courts.
In Slovakia consumer protection is guaranteed by Europske Spotrebitelske
Centrum259 by the Ministry of Economy. It has to be kept in mind however,
that there is no uniform list of clauses considered unfair in Slovakia. As a
result, every case is considered individually, which considerably prolongs and
impedes the process of claiming lawful rights by consumers.
In Hungary every consumer may try to obtain necessary help in the
http:// www.oft.gov.uk.
http://www.clauses-abusives.fr/index.htm.
256
CENTRE EUROPEÉN DES CONSOMMATEURS, Director: BIANCA SCHULZ c/o Euro-Info-Verbraucher e.V.; Rehfusplatz 11; D-77694 Kehl; Tel. +49/78 51 991 48 0 0820/200 999 (AVAILABLE ONLY FROM FRANCE); Fax: +49/78 51 991
48 11; E-mail: [email protected]; www.euroinfo-kehl.com.
257
EUROPÄISCHE VERBRAUCHERZENTRUM DEUTSCHLAND Director: Jutta Gurkmann c/o Euro-Info-Verbraucher
e.V., Rehfusplatz 11; D-77694 Kehl; Tel. +49/7851 991 48 0; Fax: +49/7851 991 48 11; E-mail: [email protected]; www.
euroinfo-kehl.com.
258
EUROPEAN CONSUMER CENTRE OF THE CZECH REPUBLIC; Director: Karel Kronovetr, Na Frantisku 32; 110 15,
Prague 1; Tel. +420/22406 2672; Fax: +420/22406 2314, E-mail: [email protected]; http://www.mpo.cz.
259
EUROPSKE SPOTREBITELSKE CENTRUM; Director: Veliova Dźenśida, Mierova 19; 827 15 Bratislava; Tel. +421/2
4854 1605; Fax: +421/2 4854 1627, E-mail: [email protected]; www.economy.gov.sk/ecc.
254
255
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European Consumer Centre of Hungrary260. However, due to the fact that the
employees of this institution have no command of the English language, as well
as no texts of legal acts are available in English – avoiding the consequences
of a contract concluded with a dishonest entrepreneur may be impeded, if not
impossible.
4.
Final conclusions and summary of the main points of the study
The analysis shows that despite the common origins and objectives of
consumer regulations in all the studied countries, due to the differences in
legal solutions, the cultural context and the economic development, each of
the countries has developed different methods of protecting its consumers
against unfair contractual clauses. The differences are visible already in the
analysis of the basic notions such as the consumer, the seller or the supplier.
In Germany and Hungary the core abusive clauses regulations apply not only
to B2C but all types of contracts. Broadening the scope of consumer protection
to embrace also certain groups of businesses, which is characteristic for the
French legal system, can also be noticed in other countries. Poland is the
only country with such a focus on put on the so-called abstractive control.
The Polish legal system is characterized by the extensive effectiveness of the
judgements of the Court of Competition and Consumer Protection which
apply also to contracts not directly related to the particular case heard by
the Court. The same objective is reached in France through the operations
of the Council of State. Whilst in Hungary, the court investigating the given
case has the possibility to extend the effectiveness of the given judgement
also to other contracts, which brings the system closer to the Polish one.
What is also is interesting about Hungary is that the regulations contain a
reservation stating that a given decision may be deemed ineffective only if this
would be beneficial for the consumer. This reservation seems to be obvious,
nevertheless in complex legal relations it may happen that fulfilment of the
abusiveness criteria eliminates the given clause from the contract and this is
not fully in line with the consumer’s interest. It would be worth considering
for the other countries to introduce the Hungarian solution. Another very
interesting solution applied in Hungary is the publication of judgements on
abusive clauses in newspapers. The Polish way of the judgements’ publication
in “Monitor Sądowy i Gospodarczy” (“Court and Economic Monitor”) is not
effective, since the Monitor does reach the general public. Another Hungarian
solution worth considering is the principle that consumer contracts must be
EUROPEAN CONSUMER CENTRE OF HUNGARY; Director: Gyorgy Morvay, Logodi u. 22-24; 1012 Budapest; tel.
+36/1 473 0338; Fax: +36/1 331 7386, E-mail: [email protected]; www.efk.hu.
260
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interpreted according to the commonly accepted meaning of the used terms
and not the complicated and illegible contractual glossaries or the technical
and legal jargon. Yet another interesting Hungarian solution is the fact that
the businesses are obliged to inform consumers in what way the standard
contract they are about to sign is different from the standard contracts widely
used in this type of transactions or from the previous standard contract used
by the given entrepreneur.
As we can see on the example of Hungary, it is possible to carry out a
translative transposition complementing it with many nationally specific
elements. On the opposite pole from the translative transposition there is the
Czech and Slovak legislation. The latter omits certain, significant as it seems,
fragments of the EU directive. For example, there is no presumption that the
clause was not negotiated individually or the presumption of abusiveness of
the entire clause or any other instrument making it easier for the consumer to
pursue his or her claims in court. In Slovakia the absence of negotiations at the
moment of concluding the contract is the necessary condition in all consumer
relations. As a consequence, if the negotiations do occur, the given relation is
not considered a consumer one and the weaker party is deprived of any due
protection.
The Czech and Slovak systems are characterized by the fact that the
definition of abusiveness does not include the criterion of good faith, but
only the so-called disproportion in rights of the parties. It seems that such a
formulation of the provisions which are of key significance is not sufficient.
The French legislation must be given credit for the fact that it recognizes
that abusive clauses can be included not only in contracts but also in any
other documents occurring in B2C relations, including receipts, tickets,
guarantees, etc. Another very valuable French solution is the fact that the socalled emotional injury (other than personal injury) must be recognized in
considering B2C relations. It is clear that for the consumer this type of injury
is often more nagging than the economic one. Therefore, it is surprising that in
other countries – and especially in Poland – this type of injury is so reluctantly
recognized in the case law. This typically French type of sensitiveness and
focus on the human and not only the economic aspects is worth disseminating
in the entire Europe. In the French law, there is also another very interesting
provision stating that each entrepreneur must make his or her standard
contracts available to any person who has a legal interest in it. This solution
is worth applying in other countries. Moreover, it would be good to consider
establishing an appropriate, independent body responsible for assessing
the abusiveness of a given clause, as it is the case of the French Abusive
Clauses Commission. What is particularly worth mentioning, is the fact that
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the Commission’s opinions, although not legally binding, are nevertheless
commonly accepted. This solution is a great asset of French system worth
particular respect per se.
Let us move on to the analysis of the case law in individual countries. Since
the regulations effective in these countries show significant differences, the
judgements passed on the basis of these regulations are also not uniform.
Formulating an exhaustive and unambiguous generalization on the matter
would require a broad survey of a great number of rulings. Nevertheless,
the efforts put in developing this study allow for formulating the above
conclusion. A significant example confirming this tendency is the Hungarian
court’s ruling recognising as abusive a clause which enabled the bank to
terminate the credit contract, even if the borrower paid the instalments on
time, only because the borrower’s financial situation worsened significantly.
In Poland this kind of judgement could not have been issued since the clause
is almost identical to the Polish bank law regulations. This confirms the above
conclusion that the situation of consumers in different countries is relatively
difficult and their chances of accessing the relevant regulations and case law,
not to mention using them to substantiate their claims, are rather limited.
However, on the other hand, not everything must be seen so negatively. The
case law also shows certain tendencies universal for all the legal systems. It
could not be otherwise since the sense of honesty, justice, decency, good faith
and equivalence, which all the legislations refer to, are common to most of
the people. The unification in this scope is proved for instance by the list of
presumably abusive clauses contained in the Annex to the Directive, which,
in general, has been transposed (in more or less modified form) to the national
legal systems of all of the countries covered by the study.
One of the homogeneous tendencies is the common approach of the
different countries’ jurisprudence to the mechanisms that some entrepreneurs
apply in order to provide for an automatic extension of the contract’s life for
subsequent periods of time or the limitations they put on the possibility to
terminate an indefinite-term contract. A few similar court rulings concerning
these issues were found in the French, German or English case laws.
In some countries a clause containing a declaration of the consumer that
they have acquainted themselves with the content of the contract (being a
standard contract) was questioned by the court since its underlying aim was
to make it impossible for the consumer to argue that the contract was not
negotiated individually. A great number of court rulings prohibit clauses
limiting, or suggesting a limitation of the Internet provider’s responsibility
for an interruption and bad quality of the service. Another type of contractual
provisions which are often questioned by the courts are clauses referring
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to unclear and imprecise provisions of law, ethical principles, standards or
standard contracts which were not available to the consumer at the time of the
contract conclusion. Moreover, it is commonly thought unacceptable to collect
charges, including flat rate fees, which are beyond the consumer’s influence
(e.g. charges the consumer does not know about) or which do not take into
account the specificity of the particular client, e.g. the way the contract was
terminated (i.e. was it a sanction or a regular termination of a contract) or the
related costs of disassembling some specific devices. On the other hand, the
Hungarian case law includes a slightly different ruling, i.e. prohibiting any
diversification of charges for the use of utility infrastructure depending on the
location to where the utilities are provided, i.e. prescribing the standardization
of the charges for all clients of the given company.
As shown above, the law across Europe is rather diverse. On the Old
Continent, we can notice the tendency of particular countries to individualize
their regulations, even those based on the common legal bases. The
individualization occurs among the countries traditionally using their own
unique legal constructions (e.g. Germany, France), but also in the remaining
states. Different ways of transposition of the Directive led to differences in the
case law, however, it is possible to identify certain groups of issues in the case
of which the case law is practically the same in all the countries. However, we
must not disregard the great richness of the European legal solutions, which
on one hand is a value per se, but on the other hinders the free use of services
offered by the businesses spread across the Continent.
Against the background of other countries, the Polish legislation concerning
unfair clauses of consumer contracts is quite interesting. Although it is not as
distinctively different from the legislation in other countries, as it is the case
in Germany and France, Poland matches the benchmark of Great Britain or
Hungary, which does not mean that we, similarly to other countries, could not
borrow some interesting solutions from the latter. Although they are rather
an example of the so-called translative transposition, the Hungarian solutions
have added value which is worth examining in more detail. The regulations
of such countries as the Czech Republic and Slovakia are at relatively low
level which translates into the case law. What is characteristic of Poland is
the interesting and relatively well-developed system of abstractive control
of standard contracts. Also, the Register of Abusive Clauses maintained in
Poland is important especially for promoting consumer rights. Any reform
of the Register should take stock of the French solutions, which are close the
Polish ones in their construction, are effective and strike a perfect balance
between the interests of consumers and businesses.
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SUMMARY OF THE STUDY
Structure of the study
The study contains an analysis of the transposition of Directive 93/13
in Poland and 6 other countries, including the so-called “old EU” states
(Germany, Great Britain, France) and three countries which have become
members of the EU only recently (the Czech Republic, Slovakia, Hungary).
Considering the cognitive value of the study, its basic objective was to describe
the method of transposition applied by the Polish legislator. Learning about
the solutions applied in Poland is a good starting point for the Polish reader
to better understand the differences occurring in the other countries of the
European Union. Different chapters of the study review the history of the
Directive’s transposition and the basic terms such as the consumer and his/
her counterparty (the supplier, the seller), all accompanied by references to
the relevant sources. The study also includes chapters dedicated to specific
provisions regulating the concept of abusiveness and its premises, together
with a comparison of the solutions adopted in a given country and the
provisions of the Directive. Due to the limited volume of the study, in some
subchapters the author dispensed with the comparison of the regulations of
the different countries and the Polish solutions – such a summary is contained
in the last part of the study. Each chapter devoted to a given country contains
an additional description of this country’s case law on abusive clauses. In
several cases it turned out to be not very extensive, and the reasons for that
are provided in the text. The examination of the case law mostly focused on
contracts concerning telecommunications and the Internet, as well as other
contracts of the so-called general nature. These parts of the study, as well
as the descriptions of the different national regulations, accompanied with
references to the original texts of the regulations and their translations,
constitute an interesting material for further study. The last chapter of the
study summarizes all the issues discussed in the preceding chapters. It also
contains some general reflections on the topic and an attempt to identify the
transposition models used in different countries and the general tendencies
existing in the case law. The last chapter also outlines the main differences
between the given national systems, identifies the praiseworthy elements
and formulates some critical comments. As mentioned before, this part of
the study also contains a short comparison of the Polish regulations with the
solutions applied in the other countries. Consequently, some suggestions and
expectations addressed to the Polish legislator are formulated.
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2.
Sources of regulation and domestic normalization
The need to protect consumers was noticed in Europe somewhat later
than in the United States, which is considered to be the cradle of the law
of consumer protection. In the Treaty establishing the European Economic
Community signed in Rome on 25 March 1957, also called the Treaty of
Rome, the problem of consumer protection was not mentioned at all. On the
European ground the OECD report on consumer policy issued in 1972 was a
crucial legal document. Programming documents of the Council of Europe of
15 May 1973 on the need of establishing consumer protection, i.e. Resolution
No. 543/1973 – the Charter of Consumer Protection and the recommendation
705/1973 on consumer protection were also of great importance. The „First
common consumer policy and education programme” was created in 1975
and was introduced by the Council Resolution of 14 May 1975 and constituted
the first significant regulation concerning consumer protection.
The basic tool of implementing ideas and postulates adopted in the Union
are directives whose aim is to standardize regulations. Due to their socalled minimum character, they allow particular Member States to introduce
more restrictive solutions than those which are stipulated in particular
normalizations (so-called opting out). Taking such meaning of directives into
consideration, it is not difficult to predict that regulations based on them
vary considerably in particular Member States. Every country implements
the policy and objectives indicated in a directive in its own way. This is one
of the reasons why it is very important to indicate differences in particular
regulations, to verify them and to determine which ones are the most effective
and conform to the so-called European spirit.
In Poland, similarly to other EU countries, consumers are granted wide
protection. The scope of consumer protection stipulated in the Constitution of
the Republic of Poland was determined in the Civil Code Act of 23 April 1964
(Journal of Laws 64.16.93 amended). A basic regulation of standard contracts
was included in Articles 384-385 and the transposition of the Directive 93/13
was performed in particular in Articles 3851-3853 .
The most significant change was brought about by the amendment introduced
by the act of 2 March 2000, concerning the protection of certain consumer
rights and on the liability for damage caused by a dangerous product (Journal
of Laws 00.22.271), which came into force on 1 July 2000. Articles 18, 19 and 20
are of particular importance for the discussed institution of abusive clauses.
The first one introduces changes to the Civil Code in the form of defining
the term „consumer” in Article 384 § 3, adding Article 3841 concerning the
regulation of binding with a standard contract issued during the duration of
a durable contractual relationship (contents from than existing Article 385 § 3
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Abusive clauses– application of the provisions of Directive 93/13 in Poland and in selected countries of the EU
of the Civil Code were moved), specifying premises for abusiveness in Article
3851, determining indications that ought to be looked for while verifying those
premises in Article 3852 and establishing the so-called statutory list of abusive
clauses in Article 3853. Subsequent Article 19 of the Act distinguished a different
kind of proceedings in cases concerning acknowledging of standard contract
provisions as illegal in the Code of Civil Proceedings. Articles from 47936 to
47945 describe the rules of proceedings in frames of the so-called abstractive
control of standard contracts. Finally, the last of the discussed provisions of
the Act adds Article 138b to the Code of Offences, which introduces penalty in
the form of fine as a result of noncompliance with the prohibition of applying
provisions considered illegal.
The regulation included in Codes is completed by the Regulation of the
Council of Ministers of 19 July 2000 on the Register of Abusive Clauses
(Journal of Laws 00.62.723) kept by the President of the Office of Competition
and Consumer Protection on the basis of valid-in-law court verdicts stating
the abusiveness of standard contract provisions.
However, there are some differences between the Directive 93/13 and the Civil
Code. According to the regulations of the Polish law, all entrepreneurs entering
into contracts with consumers are the addressees of standards concerning
consumer protection. The Civil Code contains no subject differentiation of
entrepreneurs, e.g. in relation to entrepreneurs providing financial services.
Moreover, domestic regulations do not allow to exclude labour law, family
law, law of succession and company law from the scope of regulation of
standard contracts. It results from the fact that the Polish Act applies only to
relationships between entrepreneurs and consumers. The Directive, contrary
to the Polish regulation, contains also an exclusion of provisions which reflect
binding internal rules (statutory or implementation ones) and international
agreements (provisions or rules of international conventions), in which Poland
or the Community is a Party. The Polish legislator did not introduce issues
concerning conflicts of laws mentioned in Article 6(2) of the Directive to the
domestic law. According to the provisions of this paragraph, a 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 a contract, if the latter
is in close connection with the territory of the Member States. In spite of the
mentioned differences between the Directive 93/13 and the Civil Code, the
implementation has to be assessed positively. A great number of articles of
the Directive have been implemented only with minor changes, which makes
it possible to state that the basic regulatory act for abusive clauses in Poland
conforms to European requirements.
The term „illegal contract term” was mentioned in Article 3851 § 1 of the Civil
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Code. It stipulates that ‘provisions of contracts entered into with consumers
which are not individually agreed are non-binding, if they formulate
consumer rights and obligations against good practice and amount to gross
violation of consumer interest (abusive clauses)’. The Polish legislation uses
the term “abusive”, which, contrary to foreign regulations, does not conform
to the functions and meaning of abusive clauses. The word stems from abuse
– (offend, infringe) and has little to do with the term „illegal”. It is also difficult
to find a relation between „illegal” and „unfair”. The latter is used in European
regulations interchangeably with „abusive” (unfair contract terms).
According to the provisions of Article 3851 § 1 of the Civil Code, the
provisions of contracts entered into with consumers can be considered an
abusive clause, if the following criteria have been met: they formulate consumer
rights and obligations against good practice, amount to gross violation of
consumer interest and have not been individually agreed with a consumer.
Formulating consumer rights and obligations against good practice and gross
violation of consumer interest are a matter of assessment, which makes it
difficult to state whether such infringement occurred while entering into such
contract and whether such contractual clause can as a result be considered an
abusive contract term. Reference to good practice is a reference to judgements
justifying moral rules having their source in values commonly accepted and
objectively perceived. In order to state whether a given provision of a contract
has features of an abusive clause, it is necessary to rely on guidelines included
in Article 3852 of the Civil Code, which stipulates that an assessment is made
according to the condition while signing the contract, considering its contents,
the circumstances of signing it, as well as other contracts related to the contract
containing the provision being the subject of assessment.
The second factor which decides whether a given contract term can be found
abusive is the clause of „gross violation of consumer interest”. This clause has
to be understood in a broad sense, considering, apart from economic interest,
also problems concerning organizational inconvenience.
The term „not individually agreed” means that consumers do not have actual
impact on the contents of a contract when they are signing it. It also concerns
only particular contractual provisions, if other ones allowed negotiating. The
burden of proof concerning individual reconcilements belongs to those who
make reference to such circumstance (Article 3851 § 4 of the Civil Code). In
principle it is an entrepreneur who tries to prove that consumers have been
bound with the provisions included in a contract or in a model. It ought
to be emphasized at this point that relevant elements of a contract are in
principle individually agreed by the parties and cannot be assessed in terms
of abusiveness, if they have been explicitly and clearly formulated.
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The definition of an „illegal contract provision” determined in 3851 § 1 of
the Civil Code has been completed in Article 3853 § 1 of the Civil Code with
a list of 23 specific clauses (the so-called grey list) which in case of doubt are
considered illegal. The basis for creating this list was a list of illegal clauses
enclosed in the Annex to the Directive 93/13. This list however is not complete.
It is only an indication, a sample group of illegal contract provisions occurring
most often in practice.
The scope of means to eliminate the consequences of illegal contractual
provisions in the Polish regulation includes civil remedies among which there
are: (i) individual and (ii) abstractive protection, (iii) administrative and (iv)
punitive measures. A basic sanction aiming at a direct protection of consumer
interest against the consequences of unfair contractual provisions is Article
3851 § 1 of the Civil Code, stating that a consumer is not bound by a specific
contract provision. It is important that legal construction of abusive clauses
allows to maintain a legal relation and to affect with nullity only a defective
provision, which is stipulated in Article 3851 § 2 of the Civil Code. Apart from
the abovementioned legally authorized four groups of means of protection
against abusive clauses, it is worth mentioning extra-legal ways to counteract
abusive clauses. Among those there are mainly educational actions of
different kinds making customers aware of their rights, actions popularizing
the issue of abusive clauses, including the publishing of information leaflets
by authorized bodies, taking up mediation in disputes between entrepreneurs
and consumers, as well as similar actions in the category of consumer policy.
Individual protection of consumers against abusive clauses may rely on
substantial consequences of the provisions of 3851 of the Civil Code and
consumers may choose to act passively or actively. Suits for considering a
standard contract illegal are part of the proceedings in frames of the so-called
abstractive control of standard contracts, which means they are carried out
separately from specific contracts. The competence to verify the provisions of
a standard contract and to find them illegal according to Article 47936 of the
Code of Civil Proceedings was granted to the District Court in Warsaw – the
Court of Competition and Consumer Protection. In case of admitting legal
action, according to Article 47942 § 1 of the Code of Civil Proceedings, the Court
quotes in its verdict the contents of provisions of a standard contract which are
found illegal and prohibits applying them. Moreover, on the basis of Article
47945 of the Code of Civil Proceedings, a copy of a valid verdict considering
legal action is sent by the Court to the President of the Office of Competition
and Consumer Protection, who keeps the Register of Abusive Clauses. Under
a regulation of the Council of Ministers, this Register is publicly available. On
entering a standard contract’s provision found illegal to the Register, a valid
verdict has an effect also on third parties. Moreover, this verdict is published
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in the Court and Economic Monitor. Such control is of special importance for
eliminating the provisions which are disadvantageous for consumers from
economic activity and it also has a big role in making entrepreneurs aware of
practices and specific provisions which harm consumers.
Introducing administrative and legal means of protection against
contractual provisions which are detrimental for consumers was carried out
by adopting a resolution of 5 July 2002 on amendment to the Act on consumer
and competition protection, the Act – Code of Civil Proceedings and the Act
on combating unfair competition, replaced on 21 April 2007 by the Act of 16
February 2007 on competition and consumer protection, stipulating a range
of severe sanctions, including financial ones. Article 138b of the Act of 20 May
1971 – the Code of Offences also stipulates specific sanctions for the breach of
provisions concerning abusive clauses.
The above shows that Polish regulations contain a scope of legal measures
concerning consumer protection against disadvantageous contractual
provisions both in the civil and in the administrative and punitive sphere. The
problem is however, that the mere existence of those measures does not make
them effective. The practice shows that the best mechanisms of protection are
material and direct sanctions mentioned in Article 3851 of the Civil Code.
The case law in Poland, which is later published in the Register of Abusive
Clauses for the purpose of eliminating illegal contractual provisions from
consumer trade, is of great importance. All present and potential contractors
of those who suggest a given model can become familiar with the content
of an illegal standard provision. Thanks to that they gain knowledge which
enables them to question contractual provisions which have their counterparts
in the Register. The informational function of the Register helps to eliminate
one of the biggest consumers’ weaknesses, which is their dispersion (there is
a chance that information about a judgement will get to clients of an entity
who are located all over the country), as well as lack of knowledge about
rights granted to them and about illegal actions of entrepreneurs. It ought
to be remembered however, that the main purpose of the Register is to make
entrepreneurs aware of an illegal character of provisions applied in standard
contracts, which makes it a significant factor shaping future contents of
contracts signed with consumers.
3.
Transposition of the Directive in particular countries – conclusions
The conducted analysis proved that in spite of common origins of proconsumer regulations and objectives of this regulation which are common
for all analyzed countries, the applied legal measures, cultural specificity
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and economic development caused a situation when every country presents a
different manner of protecting consumers against unfair contractual clauses.
Differences are visible at the stage of analyzing basic terms, such as consumer,
seller or supplier. In Germany and Hungary the regulation of abusive clauses
basically applies to all contracts, not only to consumer ones. Granting consumer
protection also to some groups of entrepreneurs, which is characteristic for
the French legal system, can be found also in some other legal systems and
in other systems – including the Polish one – it is still ignored. On the other
hand, Poland is the only country where such attention is paid to the so-called
abstractive control. It is characteristic of Polish legal system that verdicts of the
Court of Competition and Consumer Protection apply also to relations which
are not directly the subject of legal action. The same goal is attained in France
through actions of a legislative body which is the Council of State. In Hungary
there is an interesting reservation included in legal provisions, which says
that inefficiency of a given clause can be stated only when it is profitable to
consumers. It seems to be an obvious reservation, however it may turn out
in complex legal relations that meeting the abusiveness criteria eliminates a
given clause from a contract, which is not entirely beneficial for consumers. It
would be advisory for other countries to consider introducing the Hungarian
solution. An equally interesting solution applied in Hungary is publishing
judgements concerning abusive clauses in daily press. In this context, the
Polish way to make judgements public in the Court and Economic Monitor
which is unlikely to be accessed by consumers, has little efficiency. Another
Hungarian solution worth considering is a provision stipulating that consumer
contracts should be interpreted according to generally accepted meaning of
applied words and not according to complex and barely intelligible so-called
contract glossaries or a technical and legal jargon. There is another interesting
obligation to be found in this country, which says that entrepreneurs have to
inform about differences between standard contracts and market standards or
previous standards applied by a given entrepreneur.
As it can be observe in the example of Hungary, a translatory implementation
can be carried out with many individual elements. An alternative to the
translatory implementation are the Czech and Slovak regulations. The
latter one does not include fragments of the European model which seem
to be important. For instance, there is no presumption of lack of individual
negotiation of a clause in this case, or the presumption of the abusiveness of
the whole clause, or any other instrument which makes it easier for consumers
to bring an action against entrepreneurs. However, it is accepted in Slovakia
that lack of negotiation while concluding a contract is a necessary condition
of every consumer relation. Consequently, if negotiations are held, then a
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given relation is not regarded as a consumer one and the weaker party of such
relation is deprived of due protection.
It is characteristic of the Czech Republic and of Slovakia that the criterion
of good faith is not included in the definition of abusiveness, but only the socalled imbalance in the rights of both parties. It seems that such formulation
of provisions which are crucial for the analyzed institution is not sufficient.
The French regulation contains a statement explicitly stipulated in the
provisions and worth emphasizing, which says that abusive clauses can be
included not only in contracts, but also in any other kind of documents applied
in consumer relations, including receipts, tickets etc. There is also another
valuable solution adopted in France which orders to include the so-called
emotional damage (other than inflicted to a person) in consumer relations. It
is obvious that this kind of damage is sometimes more painful than material
loss. Therefore, it is peculiar that in other countries – in particular in Poland
– judges acknowledge this kind of damage so reluctantly. This French kind
of sensitivity and human-orientation, apart from economic aspects, is worth
popularizing in the whole Europe. There is also another interesting provision
which explicitly orders all entrepreneurs to provide standard contracts
applied by them to all persons whose interest requires it, which has not been
so explicitly stipulated in the Polish law. This solution is worth popularizing
in other countries. What also should be considered is establishing a competent
independent body to assess abusiveness of a given clause, similar to the French
Commission for Abusive Clauses. The Court of Competition and Consumer
Protection is an independent body, but it ought to be kept in mind that in
France verdicts concerning abusive clauses are also issued by independent
courts, but they eagerly refer to the Commission’s opinion, without prejudice
to their meaning. It ought to be particularly emphasized that the opinions of
the Commission are generally accepted, although there is no formal basis for
such acceptance. It is a very important feature of the French regulation which
deserves big respect.
4. Characteristics of the case law
Moving to the analysis of the case law in the selected countries, it needs to
be said that since the regulations effective in these countries show significant
differences, the judgements passed on the basis of these regulations are also
not uniform. Formulating an exhaustive and unambiguous generalization
on the matter would require a broad survey of a great number of rulings.
Nevertheless, the efforts put in developing this study allow for formulating
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the above conclusion. A significant example confirming this tendency is the
Hungarian court’s ruling recognising as abusive a clause which enabled the
bank to terminate the credit contract, even if the borrower paid the instalments
on time, only because the borrower’s financial situation worsened significantly.
In Poland this kind of judgement could not have been issued since the clause
is almost identical to the Polish bank law regulations. This confirms the above
conclusion that the situation of consumers in different countries is relatively
difficult and their chances of accessing the relevant regulations and case law,
not to mention using them to substantiate their claims, are rather limited.
However, on the other hand, not everything must be seen so negatively. The
case law also shows certain tendencies universal for all the legal systems. It
could not be otherwise since the sense of honesty, justice, decency, good faith
and equivalence, which all the legislations refer to, are common to most of
the people. The unification in this scope is proved for instance by the list of
presumably abusive clauses contained in the Annex to the Directive, which,
in general, has been transposed (in more or less modified form) to the national
legal systems of all of the countries covered by the study.
One of the homogeneous tendencies is the common approach of the different
countries’ jurisprudence to the mechanisms that some entrepreneurs apply in
order to provide for an automatic extension of the contract’s life for subsequent
periods of time or the limitations they put on the possibility to terminate an
indefinite-term contract. A few similar court rulings concerning these issues
were found in the French, German or English case laws.
In some countries a clause containing a declaration of the consumer that
they have acquainted themselves with the content of the contract (being a
standard contract) was questioned by the court since its underlying aim was
to make it impossible for the consumer to argue that the contract was not
negotiated individually. A great number of court rulings prohibit clauses
limiting, or suggesting a limitation of the Internet provider’s responsibility for
an interruption and bad quality of the service. Another type of contractual
provisions which are often questioned by the courts are clauses referring
to unclear and imprecise provisions of law, ethical principles, standards or
standard contracts which were not available to the consumer at the time of the
contract conclusion. Moreover, it is commonly thought unacceptable to collect
charges, including flat rate fees, which are beyond the consumer’s influence
(e.g. charges the consumer does not know about) or which do not take into
account the specificity of the particular client, e.g. the way the contract was
terminated (i.e. was it a sanction or a regular termination of a contract) or the
related costs of disassembling some specific devices. On the other hand, the
Hungarian case law includes a slightly different ruling, i.e. prohibiting any
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diversification of charges for the use of utility infrastructure depending on the
location to where the utilities are provided, i.e. prescribing the standardization
of the charges for all clients of the given company.
5.
Final conclusions
As shown above, the law across Europe is rather diverse. On the Old
Continent, we can notice the tendency of particular countries to individualize
their regulations, even those based on the common legal bases. The
individualization occurs among the countries traditionally using their own
unique legal constructions (e.g. Germany, France), but also in the remaining
states. Different ways of transposition of the Directive led to differences in the
case law, however, it is possible to identify certain groups of issues in the case
of which the case law is practically the same in all the countries. However, we
must not disregard the great richness of the European legal solutions, which
on one hand is a value per se, but on the other hinders the free use of services
offered by the businesses spread across the Continent.
Against the background of other countries, the Polish legislation concerning
unfair clauses of consumer contracts is quite interesting. Although it is not as
distinctively different from the legislation in other countries, as it is the case
in Germany and France, Poland matches the benchmark of Great Britain or
Hungary, which does not mean that we, similarly to other countries, could not
borrow some interesting solutions from the latter. Although they are rather
an example of the so-called translative transposition, the Hungarian solutions
have added value which is worth examining in more detail. The regulations
of such countries as the Czech Republic and Slovakia are at relatively low
level which translates into the case law. What is characteristic of Poland is
the interesting and relatively well-developed system of abstractive control
of standard contracts. Also, the Register of Abusive Clauses maintained in
Poland is important especially for promoting consumer rights. Any reform
of the Register should take stock of the French solutions, which are close the
Polish ones in their construction, are effective and strike a perfect balance
between the interests of consumers and businesses.
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