Effects of Collectively Prohibited Unfair Commercial Practices on Standardized Contractual Relations?

The question is whether and to what extent unfair commercial practices, which are judicially prohibited, may have an impact on contracts. So what is at stake is the supra-individual variant of the constellation in the Perenicova case. Do unfair commercial practices affect consumer contracts per se? But there is more. It is not only the effect of unfair commercial practices which has to be discussed but also the potential remedies for consumers who have suffered from the conclusion of undesirable contracts, individually and collectively. Here we face a kind of claim to remedial action sui generis. In Putz/Weber the ECJ embarked exactly upon this path.

The first issue is the determination of the potential effects. We would again encounter the Perenicova decision, but with the particularity that the illegality of the incriminated commercial practice has already been determined. Let us presume that the factual circumstances underlying the Perenicova case are not an isolated case, but a strategy on a massive scale. The competent bodies which enjoy standing launch an action for injunction. The court finds the commercial practice to be unfair. Can the assessment of the illegality of an incorrect interest rate have a positive impact on all consumers who concluded a contract with the same bank due to the same advertising?

Article 5(1) of Directive 2005/29/EC formulates in an apodictic way: 'Unfair commercial practices shall be prohibited.' The parallel to Article 101 TFEU immediately springs to mind: 'Any agreements or decisions prohibited pursuant to this Article shall be automatically void.' 'Shall be prohibited' refers to the illegality of the incriminated commercial practice. Seen through the lens of a collective regulation, commercial practices can only be illegal if they cannot be void. The picture looks different if we change perspective and look for the potential effects of an unfair commercial practice. It seems as if the verdict of illegality is inherently bound to the question of a possible extension. This means the effects only become clear when one does not look at the unfair commercial practice itself but at the effects it produces on consumer contracts. We will come back in regards to the analysis of Article 11 of Directive 2005/29/EC.

The second issue concerns the links between the potential effect and the existence of remedies. The wording of Article 101 TFEU served the ECJ in Courage[1] to establish an independent claim for damages in favour not only of business but also of the individual consumer. Does it make sense to reflect on a remedy as a logical consequence of the effects of 'shall be prohibited'? With regard to individual remedies Article 47 of the Constitutional Charter seems to be a more promising avenue. But what about collective rights? Here the remedy that would make sense is a skimming-off action to recover the ill-gotten gains or a court-ordered restitution to individual consumers.

Extension of Res Judicata through Reference to Article 11 of Directive 2005/29/EC?

Already the question is bold: extension of res judicata not only from the collective to the individual action in unfair terms, but from collective actions for injunction in unfair commercial practices to collective action for injunction in unfair contract terms - and from there via Invitel to individual actions in unfair contract terms? The justification for such an attempt should be found in the idea of a common approach, an approach which joins the two areas of the law together and which starts from the premise that the statement of unfairness cannot so easily be broken down into boxes, in order to deprive it from its beneficial effects to consumers.

A certain support for a grand solution, a collective expansion of binding legal force could be provided by Article 11(1), which reads as follows:

Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.

Article 11 is about the action for injunction. In light of Invitel, an appropriate and efficient means with regard to the law on unfair commercial practices can include at least two levels: a finding of the unfairness and the future elimination of the unlawful state of affairs. These two forms can also be found in the law on unfair commercial practices.

Article 11(2) contrasts cessation of unfair commercial practices' in paragraph (a) with the preventive prohibition in paragraph (b), as long as 'the unfair commercial practice has not yet been carried out.

In comparison to Article 7 of Directive 93/13/EEC, this formulation is weak. Nevertheless, it is worthwhile to think about the possible implications of the distinction in the light of both ECJ decisions.

  • [1] ECJ, Judgment of 20.9.2001, C-453/99 Courage Ltd v Crehan, ECR 2001, I-6297 recital 26.
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