Abusive Clauses

REVIEWED DECISION (S): Council of State, section, 11 July 2001, Société des eaux du Nord

AUTHOR (S):                                                 Sauphanor-Brouillaud, Natacha

REFERENCE:                                              La Semaine Juridique, Company edition, n ° 3, January 17, 2002, pp. 134-135

KEYWORDS:                                              Consumer protection, unfair terms, industrial and commercial public services (SPIC), water supply, article 35 of the law of January 10, 1978, article L 132-1 of the Consumer Code

The unfair nature of a clause is assessed not only with regard to this clause itself but also taking into account all the stipulations of the contract and, when the latter has as its object the performance of a public service, particular characteristics of this service.

The disputed provisions may lead to a user being made to bear the consequences of damage which would not be attributable to him without, however, being able to establish a fault on the part of the operator. They are included, for a service provided as a monopoly, in a membership contract. They are not justified by the particular characteristics of this public service. They thus have the character of an unfair term within the meaning of the provisions of article 35 of the law of January 10, 1978. They were therefore illegal from their adoption. They also do not comply with the provisions of article L 132-1 of the Consumer Code.

DECISION 

On the one hand, the mere fact that a contract falls within the category of membership contracts is not sufficient to demonstrate that a particular clause was imposed by an abuse of economic power and, on the other hand, the reference to only disadvantages suffered by the insured, without comparing them with the advantages received by the insurer, does not make it possible to characterize the excessive advantage obtained by the latter.

Therefore, does not legally justify its decision with regard to Article L. 132-1 of the Consumer Code, in its drafting prior to the law of February 1, 1995, applicable in the case, a court of appeal which, to deem unwritten as being abusive a clause of an insurance contract guaranteeing, in the event of unemployment, the repayment of a mortgage, which excludes unemployment occurring after the expiration of a fixed-term employment contract, retains that the combination of this clause with that which limits the duration of the guarantee to twenty-four months, assimilates by sanctioning them in the same way the efforts made by the insured by occupying a job, even if it is precarious, during Period of guarantee,resignation from his job or his prolonged inaction and has the paradoxical consequence of preventing an unemployed person from occupying an available fixed-term job during the entire guaranteed period, which gives the insurer an excessive advantage and that in the case of an adhesion contract, the clause could not be the subject of individual negotiation and could only have been imposed by the insurer.

KEYWORDS:  Membership contract – Negotiation – Abusive clauses. – Article L. 132-1 of the Consumer Code (wording prior to the law of February 1, 1995). – Abusive nature. – Appreciation. – Balance of advantages and disadvantages

REVIEWED DECISION (S): Court of Justice of the European Communities, 3 ^rd chamber, 22 November 2001, joined cases C-541/99 and C-542/99; Cape Snc v Idealservice Srl and Idealservice MNRE Sas v OMAI Srl

AUTHOR (S):                                                 Paisant, Gilles

REFERENCE:                                              La Semaine Juridique, General edition, n ° 12, March 20, 2002, pp. 555-558

KEYWORDS:                                              European Communities, consumer protection, unfair terms, article 2 (b) of Council Directive 93/13 / EEC of 5 April 1993, concept of consumer

The concept of “consumer”, as defined in Article 2 (b) of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers, must be interpreted in the sense that it is aimed exclusively at natural persons .

REVIEWED DECISION (S):             Court of Justice of the European Communities 22 November 2001

AUTHOR (S):                                                 C. Rondey

REFERENCE: Le Dalloz, n ° 1, January 3, 2002, Business Law Book, Case law, Case law news p. 90                                             

KEY WORDS: Consumer law. Abusive clauses.                                             

The concept of consumer as defined in art. 2 (b) of Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in contracts concluded with consumers, must be interpreted as meaning that it relates exclusively to natural persons.

Therefore, a company which has entered into a contract with another company to purchase a good or a service for the exclusive use of its own employees, totally foreign and dissociated from its typical professional and commercial activity cannot be regarded as a “consumer” in the meaning of the Unfair Causes Directive.

TITLE:                       Application of the regulation of unfair terms to public services: concerning the Société des eaux du Nord judgment rendered by the Council of State on July 11, 2001.

 AUTHOR :                  Amar, Jacques

 REFERENCE :           Dalloz, Business Law Cahier, n ° 34, October 4, 2001, pp. 2810 – 2814

 KEY WORDS :            Consumer law, public services, derogatory regime, community law

REVIEWED DECISION       Tribunal de Grande Instance (TGI) of Paris, 8th Chamber, September 7, 1999, Association Confédération Syndicale du Cadre de Vie v Company F

Reference            Recueil Dalloz Sirey  , n °        44  ,            12/16/1999  , pp.             89-93,

KEYWORDS            Abusive clause, trustee contract, article L. 132-1 of the Consumer Code

REVIEWED DECISION       Court of Cassation, Civil Chamber number 1, UFC and others v Company P

AUTHOR (S)            Paisant, Gilles

Reference            JCP G Semaine Juridique (general edition)  , n °            47  ,            24/11/1999  , pp. 2092-2094,            Case law 10 205

KEYWORDS            Abusive clauses, consumer code, article L 421-6, request for invalidity, publisher, sales agreement model, action by consumer associations, inadmissibility, sales contract concluded between non-professionals, existence of an agreement between the model editor and a consumer

REVIEWED DECISION       Court of Cassation, Civil Chamber number 1, October 05, 1999, UFC 38 Federal Union of Consumers v Company E

Reference            Recueil Dalloz Sirey  , n °        41  ,            18/11/1999  , pp.             52-53, Business law book; Case law news

KEYWORDS            Abusive clause, standard contract, deletion, legal action, consumer association, damages

REVIEWED DECISION       Court of Cassation, Civil Chamber number 1, July 10, 1996, GAEC de S v Company I

AUTHOR (S)            Delebecque, Philippe

Reference            Recueil Dalloz Sirey  , n °        22  ,            05/06/1997  , pp.             173-173

KEYWORDS            Sales contract, assignment, obligation to advise, information, general conditions of sale, abusive clause, watering equipment

REVIEWED DECISION       Court of Cassation, Civil Chamber number 1, January 03, 1996, Société Tourrès et Compagnie, Verreries de Graville v La ville du Havre, Water Department; Court of Cassation, Civil Chamber number 1e, January 30, 1996, SA Crédit de l’Est v Société André Bernis Latitude 5

AUTHOR (S)            Leveneur, Laurent

Reference            JCP E Semaine Juridique (company edition)  , n °            25  ,             20/06/1996  , pp. 149-152,             Case law number 830

KEYWORDS            Consumption, consumer protection, unfair terms, article L. 132-1 of the Consumer Code, scope, contract for the supply of goods or services, contracts between professionals