Memorandum by Dr Christian Twigg-Flesner,
Reader in Law, University of Hull
1. This document is a short submission of
evidence to the Sub-Committee's inquiry into the proposed Consumer
Rights Directive. I am a Reader in Law at the University of Hull,
and have researched, written on and taught aspects of EU consumer
contract law for over a decade. I am one of the editors of the
EC Consumer Law Compendium, a comparative law exercise
which was part of the Commission's evidence base in preparing
its proposal. I am also a member of the Acquis Group, which
has prepared a restatement of existing EC Contract Law and has
contributed to the Draft Common Frame of Reference. This
evidence is given in my personal capacity and not on behalf of
any other individual or organisation. This document draws in part
on two academic papers on the proposed Directive.[1]
THE OVERALL
OBJECTIVES AND
UNDERLYING PRINCIPLES
2. THE EVIDENCE
REVEALED THROUGH
THE CONSUMER
LAW COMPENDIUM,
BUT ALSO
THROUGH THE
EXTENSIVE SCHOLARLY
LITERATURE, SHOWS
THAT THE
PIECEMEAL EVOLUTION
OF EU CONSUMER
LAW HAS
CAUSED A
SIGNIFICANT DEGREE
OF INCOHERENCE
BETWEEN THE
VARIOUS MEASURES.
DEFINITIONS OF
KEY TERMS
DIFFER, SOME
TERMS ARE
NOT DEFINED
AT ALL
IN SOME
MEASURES, AND
THERE ARE
OTHER INCONSISTENCIES
AND GAPS
IN THE
CURRENT ACQUIS
COMMUNAUTAIRE. THE
ADOPTION OF
NEW LEGISLATION
WHICH IRONS
OUT THESE
PROBLEMS HAS
TO BE
WELCOMED, IN
PRINCIPLE. THERE
ARE PROBLEMS
WITH THE
EXISTING DIRECTIVES,
NOT ONLY
IN TERMS
OF THEIR
RESPECTIVE SCOPE,
BUT ALSO
MORE FUNDAMENTALLY
IN THE
WAY THEY
WERE DRAFTED.
MANY PROVISIONS
LACK CLARITY,
NOT HELPED
BY THE
FACT THAT
SOME PROBLEMS
WILL HAVE
EMERGED THROUGH
THE PROCESS
OF TRANSLATING
LEGISLATION FROM
THE WORKING
LANGUAGE FOR
ITS ADOPTION
INTO ALL
THE OTHER
OFFICIAL LANGUAGES.
FURTHERMORE, THE
DIRECTIVES ON
DOORSTEP (85/577/EEC) AND
DISTANCE (97/7/EC) SELLING
ARE SHOWING
THEIR AGE
AND NEED
TO BE
MODERNISED TO
REFLECT THE
CHANGES IN
THE WAY
CONSUMER TRANSACTIONS
TAKE PLACE
TODAY.
3. THE HORIZONTAL
APPROACH WOULD
ENSURE THAT
THE ACQUIS
BECOMES MORE
COHERENT AND
ADOPTS CONSISTENT
DEFINITIONS AND
TERMINOLOGY. FOR
EXAMPLE, IN
THE PROPOSAL,
MANY OF
THE DEFINITIONS
HAVE BEEN
STREAMLINED TO
COVER A
MUCH WIDER
RANGE OF
TRANSACTIONS, EG,
"SALES CONTRACT",
"SERVICE CONTRACT",
AND "DISTANCE
CONTRACT". THIS
WILL GREATLY
REDUCE THE
PRESENT PIECEMEAL
APPROACH AND
PROVIDE GREATER
COHERENCE. HOWEVER,
THIS NEEDS
TO BE
BALANCED AGAINST
THE SHIFT
TO FULL
HARMONISATION, AS
WELL AS
THE SUBSTANTIVE
CONTENT OF
THE PROPOSAL.
4. THE PROPOSED
MEASURE IS
A DIRECTIVE,
RATHER THAN
A REGULATION.
ONE OF
THE PROBLEMS
IDENTIFIED WITH
THE CURRENT
ACQUIS ARE
CAUSED BY
THE TRANSPOSITION
OF DIRECTIVES
INTO NATIONAL
LAW. AS
THERE IS
NO OBLIGATION
TO COPY-OUT
THE TEXT
OF DIRECTIVES,
NATIONAL LEGISLATION
TRANSPOSING A
DIRECTIVE MAY
BE FOUND
IN ALL
SORTS OF
PLACES. THE
PROPOSED DIRECTIVE
ITSELF WOULD
NOT HAVE
TO BE
TRANSPOSED IN
ONE SINGLE
LEGISLATIVE MEASURE.
THIS IS
PRESENTED AS
AN ADVANTAGE
BY THE
COMMISSION (SEE
P 8 OF
THE PROPOSAL).
THERE WILL
STILL BE
DIVERSE NATIONAL
LAWS, POTENTIALLY
USING VERY
DIFFERENT LANGUAGE
OR CONCEPTS.
CONSUMERS AND
TRADERS WOULD
STILL HAVE
TO IDENTIFY
THE CORRESPONDING
NATIONAL LEGISLATION
IF THEY
HAD TO
ENFORCE THEIR
RIGHTS THROUGH
THE LEGAL
PROCESS.
5. THE COMMISSION'S
ARGUMENT THAT
THE USE
OF A
DIRECTIVE IS
"MORE IN
LINE WITH
THE SUBSIDIARITY
PRINCIPLE" (P
8) SURPRISES: SUBSIDIARITY
IS CONCERNED
WITH THE
ALLOCATION OF
RESPONSIBILITY FOR
INTERVENTION BETWEEN
THE EUROPEAN
AND NATIONAL
LEVELS, NOT
THE INSTRUMENT
UTILISED. THE
COMMISSION'S
JUSTIFICATION WITH
REFERENCE TO
"BETTER REGULATION"
AND SIMPLIFICATION
SEEMS TO
BE AT
ODDS WITH
THE USE
OF A
DIRECTIVE (SOMETHING
ACKNOWLEDGED IN
OTHER COMMISSION
DOCUMENTATION, WHERE
IT IS
STATED THAT
"[R]EPLACING DIRECTIVES
WITH REGULATIONS
CAN, WHEN
LEGALLY POSSIBLE
AND POLITICALLY
ACCEPTABLE, OFFER
SIMPLIFICATION AS
THEY ENABLE
IMMEDIATE APPLICATION
AND CAN
BE DIRECTLY
INVOKED BEFORE
COURTS BY
INTERESTED PARTIES").[2]
PERHAPS USING
A REGULATION
AS AN
ALTERNATIVE OUGHT
TO HAVE
BEEN EXPLORED
MORE FULLY,
ALTHOUGH THE
APPLICATION OF
THE DIRECTIVE
TO DOMESTIC
AS WELL
AS CROSS-BORDER
TRANSACTIONS MIGHT
MAKE THIS
POLITICALLY UNATTRACTIVE.
6. IT IS
ALSO SURPRISING
THAT THE
WORK ON
THE CFR APPEARS
TO HAVE
HAD NO
DIRECT BEARING
ON THE
TEXT OF
THE PROPOSAL.
AT THIS
STAGE, THERE
IS, OF
COURSE, NO
CFR YET; ONLY
THE ACADEMIC
DRAFT CFR HAS
BEEN MADE
AVAILABLE. THE
COMMISSION HAS
YET TO
DEVELOP ITS
OWN CFR. BUT
IT IS
SURPRISING THAT
EVEN THE
DCFR SEEMS TO
HAVE HAD
VERY LIMITED,
IF ANY,
VISIBLE INFLUENCE
ON THE
PROPOSAL. WHILST
ONE WOULD
NOT EXPECT
A DIRECT
COPY-OUT
OF (D)CFR PROVISIONS
INTO THE
PROPOSAL, THERE
ARE MANY
GOOD IDEAS
IN THE
DCFR WHICH COULD
HAVE BEEN
BORROWED (EG,
THE MORE
SYSTEMATIC APPROACH
TO PRE-CONTRACTUAL
INFORMATION DUTIES;
OR, MORE
GENERALLY, THE
MORE CAREFUL
DRAFTING OF
PARTICULAR LEGAL
RULES).
7. THE PROPOSAL
DOES, TO
A LARGE
EXTENT, PROVIDE
A CLEARER
LEGAL FRAMEWORK
THAN THE
CURRENT INDIVIDUAL
DIRECTIVES. HOWEVER,
ONE CAN
QUESTION WHETHER
SOME OF
THE SPECIFIC
PROVISIONS WOULD
BE WORKABLE
IN THE
CONSUMER CONTEXT.
FEW CONSUMERS
RESORT TO
LITIGATION TO
ENFORCE THEIR
RIGHTS, SO
IT IS
CRUCIAL THAT
LEGAL RIGHTS
ARE CLEAR
AND APPLICABLE
WITH SUFFICIENT
EASE IN
INFORMAL NEGOTIATIONS.
IN THIS
RESPECT, THE
PROPOSAL IS
DEFICIENT (EG,
ART 26 ON
REMEDIES, PARTICULARLY
ART 26(4)). OVERALL,
IT SEEMS
THAT THE
PROPOSAL TENDS
TO PRIORITISE
THE INTERESTS
OF TRADERS
OVER THOSE
OF CONSUMERS,
AND MUCH
MORE COULD
BE DONE
TO OFFER
A REAL
BENEFIT TO
CONSUMERS WHO
WANT TO
ENGAGE IN
CROSS-BORDER
SHOPPING.
FULL HARMONISATION
8. "FULL
HARMONISATION" IS
LIKELY TO
PROVE CONTROVERSIAL.
THE LEVEL
OF CONSUMER
PROTECTION FOR
TRANSACTIONS WITHIN
ITS SCOPE
WILL BE
FIXED BY
THE DIRECTIVE,
WITH NO
ROOM FOR
REGIONAL OR
NATIONAL VARIATION.
THE COMMISSION'S
ARGUMENT—THAT
THERE IS
LOW CONFIDENCE
IN CROSS-BORDER
CONSUMER SHOPPING
PARTLY DUE
TO THE
UNEVEN LEVEL
OF CONSUMER
PROTECTION BETWEEN
MEMBER STATES—SEEMS
LOGICAL, BUT
ONE CAN
BE SCEPTICAL
AS TO
THE REAL
IMPACT OF
LEGAL DIVERSITY
ON CONSUMER
AND BUSINESS
CONFIDENCE. PRACTICAL
FACTORS SUCH
AS LANGUAGE
BARRIERS, LACK
OF TRUST
IN UNKNOWN
BUSINESSES, CONCERNS
REGARDING THE
PRACTICALITY OF
TRANSPORTING GOODS
OVER LONG
DISTANCES, AND
CONCERNS OVER
SATISFACTORILY RESOLVING
DISPUTES ACROSS
BORDERS COULD
BE JUST
AS SIGNIFICANT—AND
WOULD NOT
BE OVERCOME
THROUGH FULL
HARMONISATION.
9. IT MAY
ALSO BE
DIFFICULT TO
ACHIEVE IN
PRACTICE. CONSUMER
CONTRACT LAW
IS A
DEROGATION FROM
"GENERAL" CONTRACT
LAW. THE
DIRECTIVE THEREFORE
DEPENDS ON
NATIONAL GENERAL
CONTRACT LAW,
BUT THIS
VARIES BETWEEN
MEMBER STATES
(HENCE THE
WORK ON
THE (D)CFR). THE
MINIMUM HARMONISATION
APPROACH HAD
THE ADVANTAGE
OF PERMITTING
THE RETENTION
OF EXISTING
NATIONAL RULES
AS LONG
AS THEY
MATCHED OR
EXCEEDED THE
LEVEL OF
PROTECTION REQUIRED
BY A
DIRECTIVE, AND
OFTEN THESE
WERE NOT
CONSUMER-SPECIFIC
RULES.
10. FULL
HARMONISATION COULD
PRODUCE A
PARADOX: THE
PROPOSAL LARGELY
RESTATES THE
CURRENT ACQUIS,
WITH MINOR
ADDITIONS/IMPROVEMENTS,
AND THEREFORE
ELEVATES THE
CURRENT MINIMUM
STANDARD TO
FULL HARMONISATION.
GENERAL CONTRACT
LAW AT
NATIONAL LEVEL
MAY IN
SOME RESPECTS
OFFER BETTER
PROTECTION THAN
THE CONSUMER-SPECIFIC
RULES, WHICH
WOULD MAKE
IT BETTER
FOR AN
INDIVIDUAL NOT
TO BE
A CONSUMER.
11. ALSO,
MANY MEMBER
STATES HAVE
MADE USE
OF THE
POSSIBILITY TO
INTRODUCE/RETAIN
MORE PROTECTIVE
RULES, AND
FULL HARMONISATION
WILL REDUCE
NATIONAL LEVELS
OF CONSUMER
PROTECTION. WHILST
SOME ADJUSTMENTS
ARE INEVITABLE,
THE EROSION
OF NATIONAL
CONSUMER RIGHTS
AS A
RESULT OF
THE DIRECTIVE
COULD LEAD
TO RESENTMENT.
SCOPE
12. THE
PROPOSAL ONLY
COVERS FOUR
DIRECTIVES. SOME
ASPECTS COULD
BE OF
RELEVANCE BEYOND
THIS CORE;
EG, THE
SECTION ON
THE RIGHT
OF WITHDRAWAL
COULD BE
UTILISED ACROSS
ALL MEASURES
WHICH PROVIDE
FOR SUCH
A RIGHT
(CONSUMER CREDIT;
TIMESHARE; DISTANCE
FINANCIAL SERVICES).
SIMILARLY, A
COHERENT APPROACH
TO PRE-CONTRACTUAL
INFORMATION DUTIES
COULD BE
EXTENDED ACROSS
ALL DIRECTIVES
IMPOSING SUCH
DUTIES (EG,
PACKAGE TRAVEL).
THE DCFR PROVIDES
MODELS FOR
THIS (BASED
ON THE
ACQUIS PRINCIPLES).
SIMILARLY, THE
DIRECTIVE ON
E -COMMERCE
COULD HAVE
BEEN CONSIDERED
AS PART
OF THIS
EXERCISE, ALTHOUGH
THIS IS
NOT A
CONSUMER-SPECIFIC
DIRECTIVE.
GENERAL CONSUMER
INFORMATION PROVISIONS
13. A MORE
COHERENT APPROACH
TO INFORMATION
DUTIES WOULD
BE A
WELCOME DEVELOPMENT,
AND WHILST
THIS PROPOSAL
TAKES A
STEP IN
THE RIGHT
DIRECTION, IT
WOULD BE
POSSIBLE TO
ADOPT A
MORE STRUCTURED
APPROACH STILL
(AGAIN, THE
DCFR OFFERS A
MODEL). ONE
POTENTIAL USEFUL
ADDITION IS
THE RULE
THAT IF
A TRADER
FAILS TO
COMPLY WITH
THE GENERAL
INFORMATION REQUIREMENTS
ON ADDITIONAL
CHARGES, THEN
THE CONSUMER
DOES NOT
HAVE TO
PAY THESE
ADDITIONAL CHARGES.
HOWEVER, BREACHES
OF THE
INFORMATION REQUIREMENTS
ARE TO
BE DEALT
WITH IN
NATIONAL LAW
- NOT DOING
SO IN
THE PROPOSED
DIRECTIVE IS
REGRETTABLE AS
THIS HAD
BEEN IDENTIFIED
AS ONE
OF THE
MAJOR GAPS
IN THE
CURRENT ACQUIS.
CONSUMER INFORMATION
AND WITHDRAWAL
RIGHT FOR
DISTANCE AND
OFF-PREMISES
CONTRACTS
14. THE
OBJECTIVE OF
CREATING ONE
SINGLE WITHDRAWAL
PROCEDURE IS
A GOOD
ONE IN
PRINCIPLE. CREATING
ONE STANDARDISED
PROCEDURE ALSO
HAS ADVANTAGES,
ALTHOUGH IT
MAY BE
QUESTIONED WHETHER
THE PARTICULAR
PROCEDURE IS
THE BEST
ONE. FOR
EXAMPLE, IN
SOME JURISDICTIONS,
IT IS
SUFFICIENT FOR
THE CONSUMER
TO RETURN
THE GOODS
IN ORDER
TO EXERCISE
HIS RIGHT
OF WITHDRAWAL.
IT IS
UNFORTUNATE THAT
THE QUESTION
OF "ANCILLARY
CONTRACTS" HAS
BEEN LARGELY
LEFT TO
NATIONAL LAW
TO RESOLVE.
THE PROPOSAL
ALSO DOES
AWAY WITH
THE INDEFINITE
EXTENSION OF
THE WITHDRAWAL
PERIOD WHERE
THERE HAS
BEEN A
FAILURE TO
PROVIDE INFORMATION
ABOUT THIS
RIGHT, FIXING
THE LONG-STOP
AT THREE
MONTHS. ALSO,
WHILST A
STANDARDISED COOLING-OFF
PERIOD MAY
HAVE THE
BENEFIT OF
LEGAL CERTAINTY,
IT NEEDS
TO BE
ASKED WHETHER
THE PERIOD
CHOSEN IS
THE BEST
ONE.
15. THE
DEFINITION OF
"DISTANCE CONTRACT"
COULD BE
PROBLEMATIC. ACCORDING
TO ARTICLE
2(6), A "DISTANCE
CONTRACT" IS
"ANY SALES
OR SERVICE
CONTRACT WHERE
THE TRADER,
FOR THE
CONCLUSION OF
THE CONTRACT,
MAKES EXCLUSIVE
USE OF
ONE OR
MORE MEANS
OF DISTANCE
COMMUNICATION". THE
CURRENT QUALIFICATION
THAT THE
TRADER MUST
OPERATE "AN
ORGANIZED DISTANCE
SALES OR
SERVICE-PROVISION
SCHEME RUN
BY THE
SUPPLIER" HAS
BEEN REMOVED,
THEREBY COVERING
ALL INSTANCES
WHERE A
CONTRACT IS
CONCLUDED BY
MEANS OF
DISTANCE COMMUNICATION.
THIS COULD
CATCH SOME
TRADERS UNAWARES:
FOR EXAMPLE,
A CONSUMER
MIGHT TELEPHONE
HIS LOCAL
FLOWER SHOP
TO ARRANGE
A DELIVERY
TO HIS
NEIGHBOUR. THIS
WOULD BE
A "DISTANCE
CONTRACT" AS
DEFINED, AND
ATTRACT THE
PROVISIONS ON
PRE-CONTRACTUAL
INFORMATION AND
THE RIGHT
OF WITHDRAWAL.
LACK OF
CONFORMITY/SALES
16. THE
CHAPTER ON
"SALES CONTRACT"
RAISES A
RANGE OF
ISSUES WHICH
CAN ONLY
BE COVERED
VERY BRIEFLY
HERE. SOME
ASPECTS OF
THE PROPOSAL
RESTATE WHAT
IS ALREADY
IN THE
CONSUMER SALES
DIRECTIVE, WHEREAS
OTHERS ARE
CHANGES OR
ALTOGETHER NEW
PROVISIONS. I WILL
ONLY HIGHLIGHT
ASPECTS OF
IMMEDIATE CONCERN
(IF REQUIRED,
I SHOULD BE
HAPPY TO
PROVIDE MORE
DETAIL).
17. THE
PROPOSAL TAKES
A GENEROUS
VIEW OF
THE MEANING
OF "SALES
CONTRACTS", COVERING
ESSENTIALLY ALL
CONTRACTS UNDER
WHICH GOODS
ARE SUPPLIED,
EVEN THOSE
MIXED CONTRACTS
WHERE THE
SERVICE ELEMENT
CONSTITUTES THE
DOMINANT PART.
THIS CERTAINLY
INTRODUCES CLARITY
AND AVOIDS
DIFFICULT QUESTIONS
OF CLASSIFICATION
(AS THEY
EXIST IN
ENGLISH LAW,
FOR EXAMPLE).
18. THE
NEW PROVISIONS
ON DELIVERY
AND THE
PASSING OF
RISK ARE
WELCOME BECAUSE
THEY CLARIFY
THE LAW
(AND WOULD
NOT SEEM
TO ALTER
THE POSITION
UNDER ENGLISH
LAW). THE
OBLIGATION TO
REFUND ANY
PRE-PAYMENTS
TO A
CONSUMER IF
DELIVERY HAS
NOT OCCURRED
BY THE
AGREED DATE
SEEMS SENSIBLE,
BUT MAY
NOT WORK
WELL IF
DELIVERY IS
ONLY DELAYED
BY A
FEW DAYS.
ALSO, WHILST
THERE ARE
PROVISIONS DEALING
WITH THE
PASSING OF
RISK WHERE
THE CONSUMER
DELAYS TAKING
DELIVERY, THERE
ARE NO
CORRESPONDING PROVISIONS
REGARDING THE
TRADER'S
OBLIGATION TO
DELIVER WHERE
THE CONSUMER
DELAYS TAKING
DELIVERY. THIS
IS AN
INSTANCE OF
INCOHERENCE THAT
COULD EASILY
BE AVOIDED.
19. THE
"CONFORMITY WITH
THE CONTRACT"
REQUIREMENT IS
FAMILIAR FROM
DIRECTIVE 99/44/EC. REGRETTABLY,
THE OPPORTUNITY
TO IMPROVE
THIS TEST
WAS NOT
TAKEN. THUS,
FURTHER FACTORS
AKIN TO
THOSE IN
SECTION 14(2A)/(2B) OF
THE SALE
OF GOODS
ACT 1979 (AND
OTHERS FOUND
IN VARIOUS
MEMBER STATES)
COULD HAVE
BEEN ADDED.
ALSO, THE
EXCLUSION OF
MATTERS OF
WHICH THE
CONSUMER WAS
OR SHOULD
REASONABLY HAVE
BEEN AWARE
REMAINS VAGUE;
AGAIN, THE
CORRESPONDING PROVISION
OF ENGLISH
LAW (SECTION
14(2C)) OFFERS A
TEMPLATE FOR
A CLEARER
PROVISION.
20. ARTICLE
26 ON REMEDIES
RAISES MANY
ISSUES. FIRST,
THE CHOICE
BETWEEN REPAIR
AND REPLACEMENT
IS GIVEN
TO THE
TRADER, RATHER
THAN THE
CONSUMER. SECONDLY,
THE CRITERIA
FOR MOVING
TO PRICE
REDUCTION OR
RESCISSION REMAIN
VAGUE AND
COULD HAVE
BEEN CLARIFIED.
WORRYINGLY, IN
CONSIDERING WHETHER
REPAIR OR
REPLACEMENT WOULD
CAUSE THE
TRADER A
DISPROPORTIONATE EFFORT,
THE COMPARATOR
REMEDIES ARE
PRICE REDUCTION
OR RESCISSION,
WHICH COULD
MEAN THAT
IN MANY
CASES OF
MINOR NON-CONFORMITIES,
THE MAIN
REMEDY WOULD
BE PRICE
REDUCTION. A BETTER
REMEDIAL SCHEME
IS OFFERED
IN THE
RECENT LAW
COMMISSION CONSULTATION
ON CONSUMER
REMEDIES FOR
FAULTY GOODS
(LCCP 188), WHICH WOULD
SEEM TO
OFFER A
BETTER MODEL
FOR CROSS-BORDER
TRANSACTIONS.
21. THIRDLY,
THE CRITERIA
FOR GIVING
THE CONSUMER
THE FREE
CHOICE BETWEEN
REMEDIES MAY
SOUND GOOD
ON PAPER,
BUT ONE
CAN QUERY
TO WHAT
EXTENT THIS
WOULD HAVE
ANY PRACTICAL
RELEVANCE. WOULD
A TRADER
WHO HAS
REFUSED TO
PROVIDE A
REMEDY INITIALLY
CHANGE HIS
MIND IF
THE CONSUMER
ASKED FOR
ANOTHER REMEDY?
ALSO, IT
SEEMS THAT
THE FAILURE
TO PROVIDE
A REMEDY
MUST HAVE
CAUSED SIGNIFICANT
INCONVENIENCE OR
THE REMEDY
MUST NOT
HAVE BEEN
PROVIDED WITHIN
A REASONABLE
TIME, AND
ANTICIPATORY FAILURES
WOULD NOT
BE COVERED.
FINALLY, THE
SAME DEFECT
MUST HAVE
REAPPEARED MORE
THAN ONCE,
SUGGESTING THAT
ONLY AFTER
THE THIRD
OCCURRENCE WOULD
THERE BE
AN ENTITLEMENT
TO REQUEST
A DIFFERENT
REMEDY. THERE
ARE SERIOUS
DOUBTS WHETHER
THIS WOULD
BE WORKABLE
IN A
CROSS-BORDER
CONTEXT.
22. ONE
FURTHER POINT
TO NOTE
IS ARTICLE
27 ON DAMAGES.
THIS SEEMS
TO CREATE
A DIRECTIVE-BASED
ENTITLEMENT TO
DAMAGES, AND
IT IS
NOT CLEAR
IF THE
INTENTION IS
TO REGULATE
THIS FULLY
AT THE
EUROPEAN LEVEL.
IF SO,
THIS PROVISION
IS TOO
VAGUE. HOWEVER,
INFORMAL INDICATIONS
FROM THE
COMMISSION SUGGEST
THAT THIS
PROVISION IS
MERELY INTENDED
TO CLARIFY
THAT DAMAGES
AT NATIONAL
LAW CONTINUE
TO BE
AVAILABLE.
23. FINALLY,
THE DIRECTIVE
WOULD INTRODUCE
A MANDATORY
TWO-MONTH
NOTIFICATION PERIOD.
THE RATIONALE
FOR SUCH
A RULE
IS NOT
SET-OUT
IN THE
DIRECTIVE, AND
THERE SEEMS
NO GOOD
REASON FOR
IT. IT
COULD BE
DETRIMENTAL TO
CONSUMERS IN
THE INTERNAL
MARKET.
UNFAIR CONTRACT
TERMS
24. THE
CHAPTER ON
UNFAIR CONTRACT
TERMS LARGELY
RESTATES WHAT
IS ALREADY
FOUND IN
DIRECTIVE 93/13/EC. ONCE
AGAIN, AN
OPPORTUNITY FOR
IMPROVING CERTAIN
AREAS, SUCH
AS THE
FORMULATION OF
THE UNFAIRNESS
TEST OR
ADDRESSING THE
CONSEQUENCES OF
A TERM
NOT BEING
IN PLAIN
AND INTELLIGIBLE
LANGUAGE, WAS
NOT TAKEN.
THERE ARE
A FEW
ADDITIONS (SUCH
AS THE
MUCH-PUBLICISED
"BAN" ON
PRE-TICK
BOXES IN
ART 31(3), A
FAIRLY MINOR
ADDITION), AND
THE WORDING
OF THE
"CORE-TERMS
EXCLUSION" HAS
BEEN IMPROVED,
BUT THE
ESSENCE REMAINS
THE SAME.
25. THE
QUESTION OF
WHETHER TO
EXTEND ANY
OR ALL
OF THIS
PART TO
NEGOTIATED TERMS
IS A
DIFFICULT ONE.
EXPERIENCE IN
THE UK (AT
LEAST FROM
REPORTED CASES)
SUGGESTS THAT
THERE ARE
SOME SECTORS
WHERE CONSIDERABLE
EFFORTS ARE
MADE TO
MANUFACTURE A
SITUATION WHEREBY
THE CONSUMER
HAS "NEGOTIATED"
AN APPARENT
STANDARD FORM
CONTRACT. SUCH
EVASION ATTEMPTS
WOULD BE
AVOIDED BY
EXTENDING THE
CHAPTER TO
NEGOTIATED TERMS.
IT SEEMS
LIKELY THAT
SUCH AN
EXTENSION WOULD
ONLY AFFECT
A SMALL
NUMBER OF
CONSUMER CONTRACTS,
BECAUSE MOST
CONSUMER CONTRACTS
WILL NOT
INVOLVE ANY
MEANINGFUL NEGOTIATION
AT ALL.
26. ONE
MAY SUSPECT
THAT THERE
WILL BE
SOME DEBATE
AS TO
WHETHER THE
"BLACK LIST"
AND "GREY
LIST" ARE
ACCEPTABLE IN
THEIR CURRENT
FORM. AS
FAR AS
THE POSSIBILITY
FOR A
TRADER TO
RELY ON
A TERM
IN THE
GREY LIST
IS CONCERNED,
THIS WILL
DEPEND ON
THE OPERATION
OF THE
FAIRNESS TEST.
THUS, IT
MAY BE
POSSIBLE THAT,
IN THE
CIRCUMSTANCES OF
A PARTICULAR
CONTRACT, A
SUSPICIOUS TERM
COULD BE
REGARDED AS
FAIR. FOR
INSTANCE, IF
A CONSUMER
HAS THE
BENEFIT OF
ADVICE, AND/OR
THE TERM
IN QUESTION
AND ITS
SIGNIFICANCE IN
THE CONTRACT
AS A
WHOLE IS
EXPLAINED CLEARLY
AND CAREFULLY,
THEN IT
MIGHT BE
OPEN TO
THE TRADER
TO ARGUE
THAT THE
TERM DOES
NOT VIOLATE
THE FAIRNESS
TEST. IT
IS IMPORTANT
TO APPRECIATE
THAT THE
GREY LIST
ONLY OPERATES
THROUGH THE
GENERAL FAIRNESS
TEST.
FURTHER COMMENT
THE FOREGOING
HAS BEEN
BRIEF. THE
COMMITTEE HAS
BEEN PROVIDED
WITH THE
MANUSCRIPT OF
THE TWO
PAPERS REFERRED
TO IN
THE INTRODUCTION,
WHICH EXPAND
ON MANY
OF THE
POINTS MADE
HERE. IF
THE COMMITTEE
WISHES FURTHER
WRITTEN DETAILS
ON ANY
MATTER REGARDING
THIS PROPOSAL,
I SHOULD BE
DELIGHTED TO
PROVIDE THIS
IN A
SUPPLEMENTARY NOTE.
13 MARCH
2009
1 C TWIGG-FLESNER, "FIT FOR PURPOSE? THE PROPOSALS
ON SALES" IN, G HOWELLS AND R SCHULZE, HARMONISING AND
MODERNISING CONSUMER LAW, (SELLIER 2009) ; C TWIGG-FLESNER
AND D METCALFE,"THE PROPOSED CONSUMER RIGHTS DIRECTIVE-LESS
HASTE, MORE THOUGHT?" (2009) EUROPEAN REVIEW OF CONTRACT
LAW, ISSUE 3 DUE FOR PUBLICATION IN AUGUST. Back
2
SEE FOOTNOTE 12 IN A EUROPE OF RESULTS-APPLYING COMMUNITY
LAW (COM (2007) 502 FINAL). SEE ALSO COMMISSION WORKING
DOCUMENT INSTRUMENTS FOR A MODERNISED SINGLE MARKET POLICY
(SEC(2007) 1518). Back
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