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The Dual/Multiple Nature of “Plain and Intelligible Language” of Unfair Terms in Consumer Contracts under European Law and Its Polish Transposition

100%

Sitnik P.

Polish Yearbook of International Law

2018

vol. 38

253-272

The “plain and intelligible language” requirement performs a dual function within the framework of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. First, it is listed as a requirement for application of the exemption included in Art. 4(2) as regards policing terms relating to the main subject matter of the contract or to the adequacy of the price and remuneration. Second, the “plain and intelligible language” requirement is a general requirement addressed at all consumer contracts executed in writing (Art. 5). This paper examines the boundaries of the precept, and places particular emphasis on the recent developments in both EU and Polish law, where the requirement has been used to imply a host of information duties aimed at enhancing consumers’ capacity to foresee the consequences of the terms that they are assenting to. This apparently novel approach, which has been developing in piecemeal fashion in the CJEU’s ever-expanding case law, may trigger significant consequences in the field of consumer contract law. In some ways, expansion of the substantive scope of the requirement may be said to be motivated by the fact that courts, under Art. 4(2) of Directive 93/13, are unable to subject the adequacy of the price and remuneration against the services or supply of goods received in exchange to the substantive fairness test under Art. 3(1) (examination of terms through the prism of the notions of good faith and significant imbalance in the parties’ rights and obligations to the detriment of the consumer).

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

86%

Sitnik P.

Review of European and Comparative Law

2018

vol. 34

issue 3

59-83

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.

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1 Polish Yearbook of International Law

1 Review of European and Comparative Law

2 Sitnik P.

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The Dual/Multiple Nature of “Plain and Intelligible Language” of Unfair Terms in Consumer Contracts under European Law and Its Polish Transposition

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