DIRECTIVE OF 5 APRIL 1993 ON ABUSIVE CLAUSES
LexInter | October 14, 2003 | 0 Comments

DIRECTIVE OF 5 APRIL 1993 ON ABUSIVE CLAUSES

COUNCIL DIRECTIVE 93/13 / EEC OF 5 APRIL 1993 CONCERNING ABUSIVE CLAUSES IN CONTRACTS CONCLUDED WITH CONSUMERS.

THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100 A thereof,
Having regard to the proposal from the Commission (1),
in cooperation with the European Parliament (2),
Having regard to the opinion of the Economic Committee and Social (3),
Considering that it is important to adopt the measures intended to gradually establish the internal market during a period expiring on 31 December 1992; whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured;
Considering that the laws of the Member States concerning the clauses in contracts concluded between, on the one hand, the seller of goods or the provider of services and the consumer, on the other hand, present many disparities, with the consequence that the markets national rules relating to the sale of goods and the provision of services to consumers differ from each other and that distortions of competition may arise among sellers and providers of services, especially when marketing in other Member States;
Considering, in particular, that the laws of the Member States relating to unfair terms in contracts concluded with consumers show marked divergences;
Considering that it is the responsibility of the Member States to ensure that unfair terms are not included in contracts concluded with consumers;
Whereas, generally, the consumer is not aware of the legal rules which, in Member States other than his own, govern contracts relating to the sale of goods or the offer of services; whereas this lack of knowledge may dissuade him from entering into direct transactions for the purchase of goods or the provision of services in another Member State;
Considering that, with a view to facilitating the establishment of the internal market and protecting citizens in their role as consumers when they acquire goods and services by contracts governed by the laws of Member States other than their own, it is essential to remove unfair terms;
Considering that sellers of goods and service providers will in this way be helped in their activity of selling goods and providing services, both in their own country and in the internal market; whereas competition will thus be stimulated, thereby helping to increase the choice of citizens of the community as consumers;
Whereas the two Community programs for a consumer protection and information policy (4) have stressed the importance of consumer protection in the field of unfair contract terms; whereas this protection must be ensured by laws and regulations, either harmonized at Community level or taken directly at that level;
Considering that, according to the principle set out in these two programs, under the title “protection of the economic interests of consumers”, purchasers of goods or services must be protected against abuse of power by the seller or the service provider, in particular against contracts membership and the abusive exclusion of essential rights in contracts;
Considering that more effective consumer protection can be obtained by adopting uniform rules concerning unfair terms; whereas these rules must apply to any contract concluded between a trader and a consumer; whereas, consequently, contracts of employment, contracts relating to successive rights, contracts relating to family status and contracts relating to the incorporation and statutes of companies are excluded from this Directive in particular;
Considering that the consumer must benefit from the same protection, both in the context of an oral contract as in that of a written contract and, in the latter case, regardless of whether the terms thereof are contained in one or more some documents;
Considering, however, that in the current state of national legislation, only partial harmonization is possible; whereas, in particular, only contractual clauses which have not been the subject of individual negotiation are the subject of this Directive; whereas it is important to leave the possibility to the Member States, in compliance with the Treaty, of ensuring a higher level of consumer protection by means of national provisions which are stricter than those of this Directive;
Considering that the laws or regulations of the Member States which set, directly or indirectly, the clauses of contracts with consumers are deemed not to contain unfair terms; whereas, consequently, it is not necessary to make subject to the provisions of this Directive the clauses which reflect mandatory legislative or regulatory provisions as well as the principles or provisions of international conventions of which the Member States or the community are parties; whereas, in this regard, the expression “mandatory legislative or regulatory provisions” appearing in Article 1 (2) also covers the rules which, according to the law, apply between the contracting parties when no other arrangement has been made. agreed;
Whereas, however, the Member States must ensure that unfair terms are not included therein, in particular because this Directive also applies to professional activities of a public nature;
Considering that it is necessary to establish generally the criteria for assessing the unfair nature of contractual clauses;
Considering that the assessment, according to the general criteria set, of the unfair nature of the clauses, in particular in professional activities of a public nature providing collective services taking into account solidarity between users, needs to be supplemented by a means of overall assessment of the different interests involved; that this constitutes the requirement of good faith; that, in the assessment of good faith, particular attention must be paid to the strength of the parties’ respective negotiating positions, to whether the consumer has been encouraged by any means to agree to the clause and whether the goods or services have been sold or supplied by special order of the consumer; what’
Considering that, for the purposes of this Directive, the list of clauses appearing in the Annex can only be indicative and that, as a consequence of the minimal nature, it may be the subject of additions or more restrictive formulations, in particular as regards the scope of these clauses, by the Member States within the framework of their legislation;
Considering that the nature of the goods or services must have an influence on the assessment of the unfair nature of contractual clauses;
Considering that, for the purposes of this Directive, the unfairness assessment should not relate to clauses describing the main object of the contract or the quality / price ratio of the supply or service; whereas the main object of the contract and the quality / price ratio may, nevertheless, be taken into account in the assessment of the unfair nature of other clauses; that it follows, inter alia, that, in the case of insurance contracts, the clauses which clearly define or delimit the insured risk and the insurer’s commitment are not subject to such an assessment as soon as when these limitations are taken into account in the calculation of the premium paid by the consumer;
Considering that contracts must be drawn up in clear and understandable terms; that the consumer must actually have the opportunity to take cognizance of all the clauses, and that, in case of doubt, the interpretation most favorable to the consumer must prevail;
Considering that the Member States must take the necessary measures to avoid the presence of unfair terms in contracts concluded with consumers by a trader; that, if in spite of everything, such clauses were to appear there, they will not bind the consumer, and the contract will continue to bind the parties under the same terms if it can survive without abusive clauses;
Considering that there is the risk, in certain cases, of depriving the consumer of the protection granted by this Directive by designating the law of a third country as the law applicable to the contract; whereas, consequently, provision should be made in this Directive to avoid this risk;
Considering that persons or organizations having, according to the legislation of a Member State, a legitimate interest in protecting the consumer, must have the possibility of bringing an action against contractual clauses drawn up with a view to generalized use in contracts concluded with consumers, and in particular, against unfair terms, either before a judicial authority or before an administrative body competent to rule on complaints or to initiate appropriate legal proceedings; whereas this option does not imply, however, a prior checking of the general conditions used in a particular economic sector;
Considering that the judicial authorities and administrative bodies of the Member States must have adequate and effective means in order to put an end to the application of unfair terms in contracts concluded with consumers,
HAS ADOPTED THIS DIRECTIVE:

FIRST ARTICLE

1. 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 trader and a consumer.
2. Contractual clauses which reflect mandatory legislative or regulatory provisions as well as provisions or principles of international conventions from which the Member States or the community are parties, in particular in the field of transport, are not subject to the provisions of this Directive. .

ARTICLE 2

For the purposes of this directive, the following definitions apply:
A) “unfair terms”:
The terms of a contract as defined in Article 3;
B) “consumer”:
any natural person who, in contracts covered by this Directive, acts for purposes which are not part of his professional activity;
C) “professional”:
Any natural or legal person who, in contracts covered by this Directive, acts within the framework of his professional activity, whether public or private.

ARTICLE 3

1. A clause in a contract which has not been individually negotiated is considered to be abusive when, despite the requirement of good faith, it creates, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties arising from the contract.
2. A clause is always considered not to have been the subject of individual negotiation when it has been drafted beforehand and the consumer has therefore not been able to influence its content, in particular within the framework of a membership contract. The fact that certain elements of a clause or an isolated clause have been the subject of individual negotiation does not exclude the application of this article to the rest of a contract if the overall assessment allows the conclusion that ‘it is nevertheless a contract of adhesion. If the trader claims that a standardized clause has been the subject of individual negotiation, the burden of proof falls on him.
3. The


ARTICLE 4

1. Without prejudice to Article 7, the unfair nature of a contractual term is assessed by taking into account the nature of the goods or services which are the subject of the contract and by referring, at the time of the conclusion of the contract, all the circumstances surrounding its conclusion, as well as all the other clauses of the contract, or of any other contract on which it depends.
2. The assessment of the unfair nature of the clauses does not relate to the definition of the main object of the contract or to the adequacy between the price and the remuneration, on the one hand, and the services or goods to be provided in return. , on the other hand, provided that these clauses are drafted in a clear and understandable way.

ARTICLE 5

In the case of contracts where all or certain clauses offered to the consumer are drawn up in writing, these clauses must always be drafted in a clear and understandable manner. In case of doubt about the meaning of a clause, the interpretation most favorable to the consumer prevails. This rule of interpretation is not applicable in the context of the procedures provided for in Article 7 (2).

ARTICLE 6

1. Member States shall provide that unfair terms appearing in a contract concluded with a consumer by a trader are not binding on consumers, under the conditions laid down by their national laws, and that the contract will remain binding on the parties under the same terms, if it can survive without unfair terms.
2. Member States shall take the necessary measures to ensure that consumers are not deprived of the protection granted by this Directive by reason of the choice of the law of a third country as the law applicable to the contract, where the contract has a close link with the territory of the Member States.

ARTICLE 7

1. Member States shall ensure that, in the interest of consumers as well as of professional competitors, adequate and effective means exist to stop the use of unfair terms in contracts concluded with consumers by a trader.
2. The means referred to in paragraph 1 shall include provisions enabling persons or organizations having, under national law, a legitimate interest in protecting consumers to apply, under national law, to the competent courts or administrative bodies in order to ” they determine whether contractual clauses, drawn up with a view to generalized use, are abusive and apply adequate and effective means in order to put an end to the use of such clauses.
3. In compliance with national law, the remedies referred to in paragraph 2 may be directed, separately or jointly, against several professionals in the same economic sector or their associations which use or recommend the use of the same general contractual clauses, or of clauses similar.

ARTICLE 8

Member States may adopt or maintain, in the field governed by this Directive, more stringent provisions, compatible with the Treaty, to ensure a higher level of consumer protection.

ARTICLE 9

The Commission shall submit to the European Parliament and to the Council, not later than five years after the date referred to in Article 10 (1), a report on the application of this Directive.

ARTICLE 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 1994 at the latest. They shall forthwith inform the Commission thereof. These provisions shall apply to all contracts concluded after 31 December 1994.
2. When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.
3. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by this Directive.

ARTICLE 11

This Directive is addressed to the Member States
Done at Luxembourg on 5 April 1993

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