Unfair Contract Terms In Search of Harmonization

A Comparative Law Introduction on the topic discussed in a Conference dealing with Standard Contract Terms in Europe raises a fundamental question: have Italian and English consumers the same opportunities of re-establishing the lost contractual balance through the Unfair Terms European Legislation? The problem faced in this paper concerns the degree of harmonization achieved by Dir. 93/13/EC through the analysis and criticism of some relevant aspects of the abovementioned Directive. The comparative perspective regards Italian and English systems, and aims at pointing out some normative and operational divergencies regarding the control of unfairness in contract terms. Assuming as a starting point that the European legislator has caught the essence of the debate over standard contracts in Europe during the years before passing off the Directive, the Directive has chosen a complex form of control over unfair terms, both desirable and efficient, that represents a synthesis of different member States experiences.
The following comparative analysis shall concentrate on the main tools chosen by the European Commission in order to control potential unfair terms. That is: a) legislative presumption of unfairness through the ‘grey list’ of contractual clauses; b) the significant imbalance and the test of unfairness; and, having regard to the enforceability of the consumers’ rights: c) judicial control over unfair contract terms put into individual contracts; b) a further – and more effective - control over contractual terms drawn up for general use, considered before an indipendent authority or a judge. In par. I I’ll discuss the main contents of the Italian and English law implementing the Directive pointing out – at the same time – the first divergencies. In part. II I’ll discuss the comparative aspect of consumers’ protection in individual contracts. In par. III I’ll indulge on the actions regarding the terms drawn up for general use and in the fourth par. I’ll sketch out some comparative comments and perspective measures for improving the standard terms control.