Veröffentlicht seit 1. Mai 2005

European Review of Contract Law

ISSN: 1614-9939

Managing Editor: Stefan Grundmann

Über diese Zeitschrift

This Journal deals with contract law and serves as a pan-European platform for discussion and analysis. The concept of a European Contract Law is still rather recent: the phrase was first coined in the 1990s. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. There were three driving forces behind this development: the EC harmonisation of laws in the area of the internal market, a generally increased interest in comparative law discussions in contract law, and the European Commission’s Communication on European Contract Law, the Commission’s Action Plan and the Common Frame of Reference process. These developments brought about a changed climate of discussion. The foundations of contract law, examined from many perspectives and in view of various national legal systems and an increasing number of disciplines, are currently being discussed in great detail in the European arena. In 10 years contract law may be the first area of European private law to be regulated in a fully fleshed out European Code.

European Contract Law comprises diverse areas of the law such as sales, standard contract terms, distribution chains, marketing practices, research and development agreements, contract law copyright aspects, financial and investment services contracts, insurance contracts and e-commerce as well as non-discrimination within and beyond labour law and more generally, important aspects of labour contracts and other symbiotic contracts.

The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area. Since 2004 the standard of information and discussions on this platform have been consolidated: ERCL discusses the body of law in three sections: articles, case law, and literature on EC Contract Law. This takes place mainly in book reviews and, in addition, contains short sections on the most recent EC legislation, sectoral developments, national developments and other news. The Review focuses on existing law at the EC level and all rules influencing the formation, content and execution of contracts from default rules to regulation, from marketing aspects to the content of contracts, from consumer (and also labour) law to general contract law. The Review is open to a variety of approaches and provides the opportunity to read traditional 'dogmatic' explanations of the upcoming and existing law, assessments through comparative law studies as well as economic analysis and discussions of the philosophical foundations and major structural features. The Review is and has been the site of intense discussion of proposals for codification or, more generally, systemisation and comprehensive development of contract law at the EC level. The European Contract Law Code is too realistic an option and much too important not to be thoroughly discussed as transparently as possible with as many competing ideas and approaches as possible. Several special issues have followed this process in great detail. The journal is meant to help in establishing a functional market of ideas in one of the core areas of private law and one of the most important areas of European private law. ERCL is the journal covering this large body of law and the modern solutions to the problems encountered.

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Band 19 Heft 4

Dezember 2023

Öffentlich zugänglich 28. November 2023

Frontmatter

Seiten: i-iii

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Editorial

28. November 2023

30 years of UCTD 1993

Seiten: 279-280

Articles

Open Access 28. November 2023

Crystal Clear? The Transparency Requirement in Unfair Terms Legislation

Marco B. M. Loos

Seiten: 281-299

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Abstract

In this paper, the transparency requirement, regulated in Article 5 UCTD, is discussed. This provision requires traders to draft terms that are to be incorporated into contracts with consumers in plain and intelligible language. The paper discusses the function of the transparency requirement, the different elements, and the consequences of a breach of the requirement: should the contra proferentem rule be applied, is the term lacking transparency unfair, or could it be argued that such term never was incorporated into the contract to begin with? And does it actually matter?

Open Access 28. November 2023

Digitized Terms: The Regulation of Standard Contract Terms in the Digital Age

Florian Möslein

Seiten: 300-320

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Abstract

Digital transformation is also transforming standard contract terms. With the emergence of online platforms, supported by algorithmic data analysis and self-enforcing technologies, platform terms are becoming increasingly common. The article argues that this type of terms differs from traditional standard terms in a number of ways, and it considers whether the existing unfair contract terms regime is still appropriate. The regulatory tools once developed for standard terms in bilateral agreements – transparency requirements, fairness review, and restrictions on contracting around – seem inadequate to meet the new challenges of digital transformation. In order to preserve – or rather recreate – the architecture of choice for private contracts, the paper argues for a new regulatory strategy: In order to strike the right balance between protecting private autonomy and avoiding significant imbalances, the regulatory objective should be to ensure the impartiality of platforms by focusing on the structural conditions of their rule-making.

28. November 2023

The UCTD 30 Years Later: Identifying and Blacklisting Unfair Terms in Digital Markets

Cristina Poncibò

Seiten: 321-345

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Abstract

Thirty years since it entered into force, the Unfair Contract Terms Directive (‘UCTD’) needs updating to address the challenges posed by digital services. This concerns in particular the fundamental research question of identifying new unfair terms of digital service providers (‘DSPs’) so that they can be included in a new blacklist. These challenges are central to the ongoing EC study named ‘Fitness Check of EU Consumer Law’ concerning the evolution of consumer law in the digital age, and promoting a fair and transparent environment for consumers in an ever-changing digital landscape. The article identifies digital-specific unfair terms used by DSPs and organises them into four main themes (i.e., digital services and contents, automation and personalisation, price & free services, and consumers’ data rights). It also discusses the methodological approaches adopted by institutions and researchers in detecting such types of unfair terms in digital environments. Finally, the article examines the possible regulatory options and, particularly, the possibility of establishing a new blacklist of digital-specific unfair terms and/or developing EC guidelines for fairness assessment under the UCTD.

28. November 2023

The Interplay Between the CJEU and National Courts in the Case Law on Unfair Contract Terms in Foreign Currency Loans: A Comparative Overview

Emilia Mišćenić, Piotr Tereszkiewicz, Marta Infantino

Seiten: 346-374

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Abstract

Over the years, the UCTD has become one of the core EU directives aiming at the protection of both businesses and consumers (B2C), i.e., at the achievement of the appropriate balance between the parties’ rights and obligations. However, the UCTD has also left quite a number of important legal questions unanswered. Besides the general clauses on the assessment of the unfairness of contractual terms, there remains a high degree of uncertainty as to the meaning of the transparency requirement and the legal consequences of unfair contractual terms. As a result, in spite of CJEU settled case law, as well as European Commission interpretation guidelines, there are diverging patterns in the national case law of the Member States. The aim of this paper is to investigate these diverging patterns by looking more closely into national case law and into the relationship between the CJEU and the Member States courts, taking as a case study the way in which the UCTD was applied in five countries (Austria, Croatia, France, Italy and Poland) in cases involving consumer loans indexed to the Swiss franc. The survey shows that there are noticeable differences in the interpretation of core concepts underlying the UCTD, such as the unfairness test, the exclusions from the unfairness assessment, and the transparency requirement. The most problematic areas, however, concern the legal consequences of the unfairness of contractual terms. By relying on the analysis of these and related issues, the authors have come to the conclusion that347 even after 30 years of the existence of the UCTD, there are still many important legal questions that need solving.

28. November 2023

Equality or Superiority of the Weak Party? Consumer Protection and the Issues at Stake

Maddalena Ginestri

Seiten: 375-393

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Abstract

From an analysis of the most recent case law of the CJEU, it becomes clear that it has taken a troublesome position on the interpretation of the Directive on Unfair Contract Terms (UCTD) and this could result in significant repercussions in terms of effective protection afforded to consumers and difficulties imposed on traders. More specifically, the CJEU’s main interpretive difficulties have focused on Article 6 of the UCTD and namely on the question of whether the non-binding nature of unfair terms implies the preclusion of contract revision and whether the UCTD legitimises rules that primarily serve to sanction sellers and suppliers rather than to ensure a rebalancing based on the principle of contract equality.

28. November 2023

Transparency Claims, Intellectual Services and Consumer Contracts: A Case of Consumer Over-Protection and Under-Protection?

Caterina Bresci

Seiten: 394-421

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Abstract

The paper examines the development of the case law of the Court of Justice of the European Union (CJEU) on the consequences of (non-)transparency claims in consumer contracts in the case of the supply of intellectual (legal) services. In its recent decision (Case C-395/21, D V), the CJEU was confronted with the consequences of the unfairness of the remuneration term contained in a legal services contract. The Court’s analysis of the non-transparency (and unfairness) of core terms under Articles 4 para 2 and 5 UCTD and its consequences under Article 6 UCDT raises a variety of questions. Specifically, the D V case illustrates the difficulties of the CJEU in striking an adequate and effective balance between consumer protection on the one hand and the right of the business party (lawyer) to her/his counter-performance (the remuneration) for the legal services on the other hand. This, in a nutshell, is because the unfairness of the term led—like most mortgage loan agreements denominated in foreign currency—to the invalidity of the whole price-setting mechanism, depriving the supplier of his/her remuneration in its entirety. Against this backdrop, the paper will address the troublesome relationship among the unfairness of core terms encompassed in consumer contracts providing intellectual services, restitutionary remedies and judicial revision of the unfair terms, alternatively leading to situations of consumer over-protection and under-protection. First, the paper will highlight why this case law poses new challenges for both consumer and national law and why it should be treated differently from – or, at least, in confrontation with – the recent CJEU’s case law concerning the mortgage loan agreements saga. Secondly, the paper395 will argue that the denial of remuneration of the supplier—even though complying with the aim to restore the legal and factual situation in which the consumer would have been in the absence of the unfair term—could entail consumer over-protection issues, since the performance could not be returned; this situation could potentially lead to clashes with overarching general principles (such as the principle of proportionality). Lastly, the exclusion of a judicial revision in the sense of a judicial estimate could be detrimental for the consumer if the quantification of the supplier’s remuneration would be impossible without such a judicial estimate. In that case, the invalidity of the unfair term and of the contract in its entirety could expose consumers to unjust enrichment claims, thus frustrating the CJEU’s aim of preventing judicial estimates of a fair charge and undermining the principle of legal certainty, as interpreted by the European Court. In this sense, such an orientation will trigger a situation of consumer under-protection. In the final analysis, the paper will address some of the possible systemic implications of the CJEU’s case examined. The paper will further suggest that, in order to prevent both situations of over-protection and under-protection of consumers, we should rethink the mechanisms of the transparency assessment under the UCTD – in particular, when essential terms are concerned and neither the restitution nor the remuneration of the services provided is possible or consistent with EU Consumer Law.

Open Access 28. November 2023

The Court and the Sleeping Beauty 2.0: Filling the Contractual Gap, or Making Valid Consumer Contracts to the Detriment of the Non-consumer?

Apostolos D. Tassikas

Seiten: 422-454

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Abstract

This paper is a critical presentation of the CJEU case-law on UCTD, with particular reference to the non-filling of the contractual gap resulting from the unfairness test by applying ‘dispositive’ law or supplementary interpretation. The result contradicts the principles and methods of national civil law: not only does the balance in the contract suffer under the position the CJEU has chosen, as it creates alternated forms of balance of interests rather than the identical ones sought by the parties, but moreover, the increasing number of different cases imposes an ambiguous approach on the CJEU, since European judges have to ask on a case-by-case basis what the best interest of the consumer is. By adopting such a functional approach in favour of the substantive justice of the contract, the ECJ decided with questionable results with regard to national civil law, while methodological legal questions as to whether the contract should stand as it is, following the unfairness test, or whether a supplementation of the contract should take place are still open. It is therefore of critical importance to achieve an optimal combination between a fair balance of the contract and effective consumer protection.423

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Einreichen

All contributions must be submitted in the European Review of Contract Law house style. The Editors will be happy to discuss proposed contributions and drafts with contributors.

General

Contributions should be double spaced and with a 2.54 cm (one-inch) margin on both sides of the page. Contributions must be submitted in English, German, or French. They should be accompanied by an abstract in English of 100-150 words in length. German authors should hand in also an abstract in German language, French authors also in French. The length of articles should not exceed 8,000 words, the length of reports (sectoral and national) 5,000 words, the Case Notes 3,000 to 3,500 words including abstract (applicable to articles and reports) and footnotes. No table of contents will be published not even in articles; it therefore is not needed.

Authors should submit their contribution as an attachment to an email addressed to:

schreiter@rewi.hu-berlin.de

The author’s name should appear under the title, and should be asterisked, with the author’s designation - in all contributions - just above the footnotes.

Guidelines Style Sheet
Special Requirements for Case Notes

Hybrid Open Access

In this journal, authors have the option to publish their article under an open access license. Open Access allows you as an author to retain copyright and share your findings with colleagues and interested parties worldwide without any restraints.

Please note that authors from institutions with which we have a transformative agreement can publish open access without paying an article processing charge (APC). More information on the eligible institutions and articles can be found　under the "Funding and Support" tab here.

Editorial

Managing Editor

Prof. Stefan Grundmann, LL.M. (Berkeley), Humboldt-Universität zu Berlin (Germany)

Managing Board

Prof. Hugh Collins, London School of Economics and Political Science (London, United Kingdom)
Dr. Mateja Durovic, King’s College London (London, United Kingdom)
Prof. Fernando Gómez Pomar, Universitat Pompeu Fabra (Barcelona, Spain)
Prof. Julie Klein, Paris Sciences Po (Paris, France)
Prof. Jacobien W. Rutgers, Vrije Universiteit Amsterdam (Amsterdam, The Netherlands)
Prof. Pietro Sirena, Bocconi University (Milan, Italy)

Consulting Board

Prof. Avv. Guido Alpa, Università di Roma La Sapienza (Rome, Italy)
Prof. Esther Arroyo, Universitat de Barcelona (Barcelona, Spain)
Prof. Em. Hugh Gurney Beale, School of Law - University of Warwick (Warwick, United Kingdom)
Prof. Rui Dias, University of Coimbra (Coimbra, Portugal)
Prof. Fabrizio Esposito, Assistant Professor of Private Law, NOVA School of Law (Lisbon, Portugal)
Prof. Muriel Fabre-Magnan, Université Paris 1 Panthéon-Sorbonne (Paris, France)
Prof. Vincent Forray, Paris Sciences Po (Paris, France)
Prof. Em. Daniel Friedmann, LL.M. (Harvard), The Buchmann Faculty of Law – Tel Aviv University (Tel Aviv, Israel)
Prof. James R. Gordley, Tulane University (New Orleans, United States of America)
Prof. Mateusz Grochowski, LL.M. (Yale), Max-Planck-Institute for Comparative and International Private Law (Hamburg, Germany)
Prof. Aristides Hatzis, National and Kappodistrian University of Athens (Athens, Greece)
Prof. Johnny Herre, Justice at the Swedish Supreme Court (Stockholm, Sweden)
Prof. Christophe Jamin, Paris Sciences Po (Paris, France)Prof. Dr. iur. Antonios Karampatzos, National and Kapodistrian University of Athens (Athens, Greece)
Prof. Dorota Leczykiewicz, Associate Professor of Law, Oxford University (Oxford, United Kingdom)
Prof. Margarida　Lima　Rego, NOVA School of Law (Lisbon, Portugal)
Prof. Brigitta Lurger, LL.M. (Harvard), Universität Graz (Graz, Austria)
Prof. Florencia Marotta-Wurgler, New York University School of Law (New York, USA)
Prof. Ugo Mattei, Università degli Studi di Torino (Turin, Italy)
Prof. Denis Mazeaud, Université Panthéon-Assas (Paris, France)
Prof. Francesco Paolo Patti, Bocconi University (Milan, Italy)
Prof. Karl Riesenhuber, M.C.J., Ruhr-Universität Bochum (Bochum, Germany)
Prof. Martin Schauer, Universität Wien (Vienna, Austria)
Prof. Karin Sein, University of Tartu (Tartu, Estonia)
Prof. Em. Lajos Vékás, Eötvös Loránd University (Budapest, Hungary)
Prof. Em. Stephen R. Weatherill, University of Oxford (Oxford, United Kingdom)
Prof. Thomas Wilhelmsson, University of Helsinki (Helsinki, Finland)

(English)

Online ISSN: 1614-9939
Print ISSN: 1614-9920
Typ: Zeitschrift
Sprache: Englisch
Verlag: De Gruyter
Erstveröffentlichung: 1. Mai 2005
Erscheinungsweise: 4 Hefte pro Jahr