Consumer protection between standard form contracts and unfair commercial practices

Teresa Moura dos Santos

Keywords

Standard contract terms; standard form contracts; unfair commercial practices; misleading action; misleading omission

Abstract

The purpose of the present study is to propose a connection between the provisions of Directive 93/13/EEC – Unfair Terms in Consumer Contracts Directive –, and those of the Directive 2005/29/EC – Unfair Commercial Practices Directive –, and ascertain, consequently, which consequences result from that coordination for the Portuguese national law. It is intended, therefore, to assess the concrete circumstances in which the use of standard contract terms, inserted in standard form contracts, entails the constitutive elements of an unfair commercial practice.

Table of contents

The purpose of the present study is to propose a connection between the provisions of Directive 93/13/EEC – Unfair Terms in Consumer Contracts Directive –, and those of the Directive 2005/29/EC – Unfair Commercial Practices Directive –, and ascertain, consequently, which consequences result from that coordination for the Portuguese national law. It is intended, therefore, to assess the concrete circumstances in which the use of standard contract terms, inserted in standard form contracts, entails the constitutive elements of an unfair commercial practice.

For that purpose, firstly it is approached the phenomenon of massification of the standard form contracts – its characteristics and problematics –, and also the unfair commercial practices, indicating the legal regimes which protect the consumer in these matters.

Secondly, the use of standard contract terms is qualified as a commercial practice.

Then, it is herein argued that the use of unfair terms, in the sense of the Directive 93/13/EEC, will normally entail the constitutive elements of an unfair business-to-consumer commercial practice, for the purposes of the Directive 2005/29/EC, namely a misleading action, since it will usually be equivalent to the supply of false information and be capable of misleading the economic behavior of the average consumer concerning both the decision to enter into a contract and during the performance of the contract as to the parties’ rights and obligations arising under the contract, since it contains terms which are legally non-binding on the consumer. Moreover, it is observed that the use, by professionals, of terms which are not drafted in plain, intelligible language (non-transparent terms) is prohibited, pursuant to the Unfair Contract Terms Directive, and in those cases entailing a lack of transparency about material information (as defined by the Unfair Commercial Practices Directive), the relevant practice shall be construed as an unfair commercial practice, namely a misleading omission. It is also made the analysis of the judgement of the European Court of Justice on the case Perenicová and Perenic, pioneer in the connection between the directives.

Finally, it is demonstrated that no conflict exists between the provisions of the Unfair Contract Terms Directive and the provisions of the Unfair Commercial Practices Directive. Therefore, it is advocated that the Portuguese courts must guarantee a complementary application of the legal instruments which implemented the mentioned directives (the Decreto-Lei n.º 446/85, of October 25th, and the Decreto-Lei n.º 57/2008, of March 26th) whenever the use of a contract term is also considered an unfair commercial practice.