scholarly journals ECONOMIC CONSIDERATIONS AS A FACET OF SUBSTANTIVE UNFAIRNESS OF CONSUMER CONTRACT TERMS IN THE PRACTICE OF POLISH COURTS

2019 ◽  
Vol 34 (3) ◽  
Author(s):  
Piotr Sitnik
Keyword(s):  
Legal Analysis ◽  
The European Union ◽  
Consumer Contract ◽  
European Regulation ◽  
Council Directive ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Exercise Of Discretion ◽  
Economic Considerations

It is trite law and a common cliché reiterated in the judgments of the Court of Justice of the European Union that the economic situation of a consumer subjected to a purportedly unfair consumer contract clause is generally impertinent. This general tenet of the European regulation of unfair terms in consumer contractsis borne out particularly by Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, under which assessment of the unfair nature of a term shall not encompass an inquiry into the adequacy of the price and remuneration, on the one hand, as against the services or goodssupplies in exchange, on the other, in so far as these terms are in plain intelligible language. Despite this seemingly bold orientation towards the formal side of the unfairness assessment, efforts have been made to inject into the judicial exercise of discretion a degree of consideration of the economic standing and interests of both the consumer and the trader involved in the particular dispute at hand. This has been done primarily by reference to the “significant imbalance” requirement pursuant to Article 3(1) of the Directive. The paper reviews an extensive crosssection of judgments handed down in Polish courts based upon the Polish transposition of the Unfair Terms Directive to show that the courts have on numerous occasions ventured outside the boundaries delineated by traditional legal analysis (even beyond the flexible bounds of purposive interpretation) to scrutinize the size and gravity of the economic burden the term under scrutiny is liable to impose upon the consumer relative to its economic strength on the market.

Intricacies of Significant Imbalance as the Cornerstone of Protection against Unfair Terms in Consumer Contracts under EU Law

2020 ◽  
Vol 82 ◽  
pp. 227-262
Author(s):  
Piotr Sitnik
Keyword(s):  
Good Faith ◽  
Consumer Contract ◽  
National Courts ◽  
Council Directive ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Administrative Proceedings ◽  
Professional Traders ◽  
The Eu

Significant imbalance in the rights and obligations of the parties to a consumer contract term is, together with good faith, a fundamental pillar of substantive protection against unfair terms. It is the primary tool provided by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts with a view to mitigating differences in bargaining power between professional traders and consumer on the ever-expanding capitalistic market within the EU. The paper comprehensively reviews the meaning of the “significant imbalance” element by reference to a cross-section of judgments handed by the CJEU and Polish courts. Generally, albeit with a few notable exceptions, the former court has engaged in a subjective-objective exercise aimed at discovering what the balance of rights and obligations would have been between the parties in the particular dispute at hand had it not been for the purportedly unfair clause. Besides that, the requirement has been utilized to impose ad bolster a host of information duties levied on traders so that protection is extended to cases where the consumer is unaware of their rights or are deterred from enforcing them due to procedural obstacles or prohibitive costs of judicial or administrative proceedings. The requirement of significant balance, rooted in the idea that the disproportion of market power between the parties to a disputed term necessitates government or judicial intervention to achieve or restore contractual equilibrium, is shown from a plethora of angles: its ideological foundations, practical connotations, its emphasis on consumer vulnerability and approach to economic power. Assistance and inspiration re gleaned from Polish jurisprudence where numerous questions either unanswered by the CJEU or left to the consideration of national courts, particularly the relation between reasonableness, on the one hand, and significant imbalance and good faith on the other, as well as between significant imbalance and good faith, have been tackled.

scholarly journals UNFAIR TERMS IN CONSUMER CONTRACTS

2019 ◽  
pp. 67-70
Author(s):  
H. B. Yanovytska
Keyword(s):  
Good Faith ◽  
The European Union ◽  
National Legislation ◽  
Council Directive ◽  
Unfair Term ◽  
Provision Of Services ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
Contractual Rights ◽  
Exhaustive List

The article deals with the concepts and signs of unfair terms in contracts with the participation of consumers. National legislation contains a warning that the seller (performer, manufacturer) has no right to offer in the contract and include unfair terms. In the European Union, such relationships are governed by Council Directive 93/13/EEC of 5 April 1993 On Unfair Terms in Consumer Contracts,which is horizontal in scope and applies to contracts to which the consumer and the seller/supplier are parties. The Directive states that an unfair term is recognized as a condition of a contract that was not individually negotiated, if, for breach of the requirement of good faith, it causes significant discrepancies in the rights and obligations of the parties arising from the contract, to the detriment of the consumer. Unlike national legislation, the Directive contains an exhaustive list of unfair terms. For example,conditions having a purpose or intention: a) to exclude or limit the legal liability of the seller or supplier in the event of death or injury to the consumer because of the activity or inaction of such a seller or supplier. b) to conclude an agreement that will oblige the consumer, according to which the provision of services by the seller or supplier will depend on the personal desire of the latter. c) automatically extend the contract of the specified duration, when the consumer does not show the opposite desire, if the specified deadline for the expression of the consumer’s desire is unreasonably short, etc. Such a list of conditions that may be considered unfair is inexhaustible. A study of national legislation shows that unfair terms of the contract violate the principle of good faith and lead to a significant imbalance of contractual rights and obligations and cause harm to the consumer. The presence of these conditions is the basis for their recognition as invalid, and in some cases invalidation of the contract as a whole.

scholarly journals Review of the New Polish Model of Abstract Control of Standard Forms of Agreements Concluded with Consumers

2016 ◽  
Vol 9 (14) ◽  
pp. 247-264
Author(s):  
Paulina Korycińska-Rządca
Keyword(s):  
Consumer Protection ◽  
Effective Means ◽  
Substantial Part ◽  
New Model ◽  
Legal Rules ◽  
Council Directive ◽  
Consumer Contracts ◽  
Court Proceedings ◽  
Unfair Terms ◽  
Administrative Proceedings

The Polish Act of 5 August 2015 amending the Act on Competition and Consumer Protection and certain other acts introduced several changes intended to strengthen consumer protection. Its substantial part concerns the abstract control of standard forms of agreements concluded with consumers. The Amendment Act of 2015 has completely changed the previous model of abstract control of standard forms of agreements concluded with consumers by replacing the court proceedings model with the administrative proceedings model. This article presents an analysis of Polish legal rules on the abstract control of standard forms of agreements concluded with consumers as amended by the Amendment Act of 2015. Its purpose is to verify whether the new Polish model may be deemed as an appropriate and effective means of preventing the continued use of unfair terms, within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. The paper analyses the legal rules on the new model of abstract control of standard forms of agreements concluded with consumers (the administrative proceedings model) and compares the new model with its predecessor (the court proceedings model). The paper does not cover the remaining changes introduced into the Polish Competition Act of 2007 by the Amendment Act of 2015, which are not connected to abstract control of standard forms of agreements concluded with consumers.

Adjudicating the European Social Market

2018 ◽  
pp. 51-106
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Fundamental Rights ◽  
Social Democrats ◽  
The Social ◽  
Depth Analysis ◽  
Charter Of Fundamental Rights ◽  
Consumer Contracts ◽  
Unfair Terms ◽  
The One ◽  
Social Market ◽  
The Eu

At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.

scholarly journals Comparative Legal Analysis of the Legislation of Labor Protection in Construction Using the Example of the EU, Azerbaijan and Ukraine

2018 ◽  
Vol 7 (3.2) ◽  
pp. 54
Author(s):  
Volodymyr Bozhko ◽  
Inna Kulchii ◽  
Joanna Szydło
Keyword(s):  
Professional Activity ◽  
Small Scale ◽  
Labor Protection ◽  
Legal Analysis ◽  
The European Union ◽  
Construction Sites ◽  
Council Directive ◽  
Safety And Health ◽  
The Right ◽  
The Eu

The present article deals with the legislation on labor protection in the construction of the European Union and compares it with the law ofUkraineandAzerbaijan. The main focus of the paper is on Council Directive 92/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites. Comparing its content with the legislation on labor protection at the construction sites ofUkraineandAzerbaijan, the authors conclude that the guarantees of the right to labor protection in the EU cover a much wider range of subjects than in other states. This is due to the fact that the term «worker», in accordance with the case-law of the Court of Justice, covers persons who performs  services for and under the direction of another person; pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary; in return for which he receives remuneration. In addition, guarantees of labor protection in the EU extend to the self-employed person, whose professional activity contributes to the completion of a project. Proposed ways to adapt Ukrainian and Azerbaijani legislation to EU law.  

Die Sanktionierung missbräuchlicher Vertragsklauseln sowie die Vertragsrückabwicklung am Beispiel Polens

2020 ◽  
Vol 66 (1) ◽  
pp. 129-162
Author(s):  
Iwona Karasek-Wojciechowicz
Keyword(s):  
Financial Institutions ◽  
Foreign Currency ◽  
European Court Of Justice ◽  
Deterrent Effect ◽  
Legal Doctrine ◽  
Court Of Justice ◽  
Council Directive ◽  
European Court ◽  
Consumer Contracts ◽  
Unfair Terms

In recent years, the European Court of Justice has often dealt with disputes revolving around the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. This article focuses on controversial questions in the domains of legal doctrine and jurisdiction, in particular in the context of disputes over foreign-currency denominated or foreign-currency indexed loans. It discusses questions revolving around legal bases for reverse transactions following the invalidity of a contract, the lack of legal bases for performing a contract, jurisdiction on the invalidity of a contract in the case of unfair terms, without which the contract cannot be concluded, the extent of reverse transactions, ECJ jurisdiction, the Council Directive’s deterrent effect, the admissibility of substitute types of fulfilling the contract, and consumer claims against financial institutions.

scholarly journals Derecho a la vivienda y desahucios: la protección del deudor hipotecario en la jurisprudencia del TJUE

2015 ◽  
pp. 261
Author(s):  
Manuel Medina Guerrero
Keyword(s):  
Fundamental Rights ◽  
Fine Tuning ◽  
Main Element ◽  
Constitutional Court ◽  
The European Union ◽  
Legal Provisions ◽  
Charter Of Fundamental Rights ◽  
Unfair Terms ◽  
The One ◽  
Judicial Protection

En los últimos años ha sido objeto de un amplio debate la configuración del procedimiento de ejecución hipotecaria, en el que se ha puesto el acento en sus deficiencias en una situación de crisis tan profunda como la que estaban padeciendo las familias en España. Especialmente, recibió severas críticas porque tradicionalmente ha restringido las posibilidades que tiene el deudor de oponerse a la ejecución. Y sin embargo, el Tribunal Constitucional, en repetidas ocasiones, había declarado la constitucionalidad del sistema procesal hipotecario, incluyendo la limitación de los motivos de oposición. En este contexto, el papel del TJUE ha sido determinante para que se procediera a la modificación del marco normativo interno al objeto de acomodarlo al derecho europeo (Directiva 93/137/CEE sobre las cláusulas abusivas en los contratos celebrados con consumidores). Con todo, la circunstancia de que la solución proviniera del derecho europeo en materia de protección de consumidores no debe eclipsar la circunstancia de que el principio de eficacia, que constituye el eje central de la argumentación del TJUE, no es sino expresión del derecho a la tutela judicial efectiva consagrado en el art. 47 de la Carta de Derechos Fundamentales de la Unión Europea.In the last years, the issue of mortgage enforcement proceedings in Spain has been the subject of an extensive debate drawing attention to the deficiencies of such procedure in a situation of severe crisis like the one Spanish households were experiencing. Particularly, it was highly criticized because there has been traditionally quite restricted possibilities of opposition for the defendant. However, the system of mortgage enforcement, including the limitation of grounds of objection, had been repeatedly declared in conformity with the Constitution by the Constitutional Court. In this context, the role of the Court of Justice of the EU has been crucially important in fine-tuning the national legal provisions in light of the European legal instruments (Directive 93/13/ EEC on unfair terms in consumer contracts). Nonetheless, the fact that the solution found in EU law emanates from the sphere of consumer protection law should not overshadow the fact that the principle of effectiveness is the main element at the basis of the reasoning of the Court, which in an expression of the principle of effective judicial protection enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

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