Private Law Theory

ABSTRACT ‘Lost in information. The transparency dogma of the Unfair Contract Terms Directive’ explores the transparency principle as developed by the Court of Justice of the European Union based on the Directive on Unfair Contract Terms in Consumer Contracts (UCTD). The EU consumer acquis is based on two assumptions: that of informational imbalance and the negotiating power imbalance between consumers and traders as a group. While the UCTD was enacted as a tool to address the lack of bargaining power, according to the ECJ’s case law it establishes a system of protection that covers both these deficiencies experienced by consumers. This approach reinforces the meaning of informational duties under the UCTD and shifts the balance from protecting through content control under the UCTD more towards protecting through information. This contribution critically scrutinises the transparency requirements construed by the ECJ within the UCTD’s legislative framework. It begins with a brief presentation of the UCTD’s provisions that deal with transparency requirements, their aims, construction and the consequences of a violation. Next, it looks at the unified approach of the ECJ towards transparency and discusses various contexts in which the ECJ interprets transparency: with the aim of providing information to consumers, which includes transparency requirements for specific contractual relations, transparency requirements as a part of the unfairness test, and transparency requirements as a threshold for controlling unfairness of the most important terms under the contract. It ends with a short overview of the concept of the average consumer developed by the ECJ through transparency and its potentially paradoxical consequences.

€ (Kluwer)

Aneta Wiewiórowska-Domagalska, Lost in information – The Transparency Dogma of the Unfair Contract Terms Directive, European Review of Private Law, volume 32, issue 3, pp 423-460 (2024).