Open normen in het Europees consumentenrecht. De oneerlijkheidsnorm in vergelijkend perspectief

PhD ceremony: Ms. C.M.D.S. Pavillon, 16.15 uur, Aula Academiegebouw, Broerstraat 5, Groningen

Dissertation: Open normen in het Europees consumentenrecht. De oneerlijkheidsnorm in vergelijkend perspectief

Promotor(s): prof. M.H. Wissink, prof. H.B. Krans

Faculty: Law

General clauses undermine harmonisation of consumer protection

Do European consumers enjoy the same (minimum) level of protection throughout the European Union (EU)? That is one of the requirements of the internal market according to the EU legislature, which has issued directives to this effect. Because the market is in complete flux, and because the EU Member States could not simply agree on which sorts of conduct should be prohibited, these directives include prohibitions, formulated in an open manner, regarding unfair contractual terms and unfair commercial practices. The advantage of general clauses is that they allow for customised approaches. Their vagueness, however, can lead to differences in interpretation. As a result, harmonisation and general clauses are not easily compatible. In her doctoral thesis, Charlotte Pavillon investigated the extent to which there is, or could be, a harmonised interpretation and application of the general clauses in the Unfair Terms Directive and the Unfair Commercial Practices Directive.

Is a notice period of more than one month in a continuing performance contract between a trader and consumer automatically unfair everywhere in the EU? Is it relevant whether a lower subscription price is provided in exchange for this? Does the unfairness of the period depend on whether the period was pointed out to the consumer? Or is it important whether a national consumer organisation was involved in formulating the condition? In the Netherlands, the bill introduced by Dutch House of Representatives member Van Dam, which will take effect in January 2012, will prohibit traders from saddling consumers with a notice period exceeding one month. In France, the decisive factors are whether the trader is bound by the same period and whether there are costs associated with termination. In England, whether the consumer was informed about the contractual term may be determinative.

Charlotte Pavillon examined how the two unfairness clauses are interpreted and applied in the Netherlands, France and England, and looked at the national transposition and enforcement choices made. It turned out that the Member States investigated deal with the general clauses differently and that there is no European harmonisation in practice.

Pavillon compared the influence of the national and EU frames of reference to the interpretation and application of the unfairness clauses. Her conclusion is that the available EU ‘reference points’ are incapable of achieving a harmonised interpretation and application of those clauses, and she has proposed various measures which might promote practical harmonisation. More transnational consultation between those responsible for the implementation and enforcement of the clauses, a less on the particular circumstances of the case base test using fixed, objectified viewpoints, and the autonomous interpretation of the general clauses by the European Court of Justice would bring about more harmonisation in practice.

Charlotte Pavillon (Groningen, 1980) studied International Relations, as well as European and International Law at the University of Groningen. She performed her research for the Faculty of Law’s Private Law and Notarial Law Department. She is currently a postdoc researcher at the Groningen Centre for Law and Governance. A commercial edition of her doctoral thesis will be published by Kluwer.