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Pencil drawing of the law school Logo of the Humboldt Forum Recht The logo reflects the ground plan of the Humboldt-University to Berlin
ISSN 1862-7617
Publications - Essays - 6-2014
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Carmen Appenzeller, LL.M.

Information Overload statt wirksamer Regelsetzung

Die Inhaltskontrolle von AGB im Vorschlag für ein Gemeinsames Europäisches Kaufrecht*

Abstract from the author

Portrait des AutorsThe Proposal for a common European Sales Law (CESL) presented by the European Commission in 2011 contains provisions in Artt. 79-85 on the control of standard terms in consumer contracts.

CESL‘s limited scope of application could complicate the control of standard terms in many cases. First, CESL can only be chosen for cross-border contracts on the sale of goods of digital contents. Secondly, various legal issues are not dealt with in CESL. Therefore, a control based on Artt. 79 et seqq. CESL may be limited to the contractual contents and legal issues covered by CESL. Standard terms pertaining to services (e.g. the delivery of a purchased good) or other legal areas (e.g. transfer of ownership, assignment, set-off) would consequently be controlled according to national rules on standard terms. This would render the legal situation even more complex for consumers, traders and judges alike.

Even the application of the 1993 Directive on Unfair Terms has proven difficult, inter alia due to the lack of a benchmark guiding the evaluation of a term’s fairness. Likewise, CESL contains no such benchmark. Speculations have arisen as to whether CESL itself should be regarded as a reference. In any case, the CJEU’s recent case law pointing to the default rules in national legal orders as benchmark of control should not be adopted under the CESL. The author recommends looking to genuinely European criteria, resulting for instance from systematic interpretation. This has been used in cases on a term’s transparency or when unfair business practices were linked to the use of standard terms.

Whether the control of standard terms is effective depends on its enforcement. In order to secure an equal level of consumer protection throughout the EU as well as making the control foreseeable for businesses, application by national judges should lead to similar results. A coherent application requires, on the one hand, a high number of cases on the national level and, on the other hand, final and binding decisions on the European level. However, the European justice system in its current state cannot guarantee either.

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Index of contents

Civil Law | European Law | Private International Law

Acquis Communautaire | Application of Law | CESL | Choise of Law | Common European Sales Law | Conflict of Laws | Consumer | Contract Law | Control of General Terms and Conditions | Control of Standard Terms | Cross-Border Contracts | DCFR | Dispositive Law | Draft Common Frame of Reference | ECJ | EU | General Terms and Conditions | Goods | GTC | Harmonisation | Lando-Principles | PECL | Principles of European Contract Law | Private International Law | Related Services | Requirement of Transparency | Sale Contract | Sales Law | Scope of Application | Set-Off | Standard Terms | Unfair Contract Terms Directive

Quotation reference:
Carmen Appenzeller, HFR 2014, S. 60 et seqq.

Linking reference:

Edited by Rebecca Sieber