¹ Council Directive 93/13/EEC of 5 Apr 1993 on unfair terms in consumer contracts, OJ 1993 L 95/29 (hereinafter referred to as the Unfair Terms in Consumer Contracts Directive or the 1993 Directive) and see below, pp 246–252.

² For example, recitals 1 and 2, Ibid; recitals 1 and 2, European Parliament and Council Directive 94/47/EC of 26 Oct 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, OJ 1994 L 280/8 (hereinafter referred to as the Timeshare Directive).

³ Cf. below, pp 236–241.

⁴ European Parliament and Council Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council, OJ 2005 L 149/22 (hereinafter referred to as the Unfair Commercial Practices Directive or 2005 Directive).

⁵ European Parliament and Council Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ 1997 L 144/19 (hereinafter referred to as the Distance Contracts Directive or 1997 Directive).

⁶ Above nn 1 and 4.

⁷ EC Commission, Report on the Implementation of Council Directive 93/13/EEC of 5 Apr 1993 on Unfair Terms in Consumer Contracts, COM(2000)248 final (herinafter referred to as the EC Commission Report (2000)), 7–9 (which deals with questions of incorrect implementation).

⁸ Joined Cases C–240/98–C–244/98, Océano Grupo Editorial SA v Murciano Quintero and others [2000] ECR I–4942; Case C–144/99, Commission v The Netherlands [2001] ECR I–3541; Case C–478/99, Commission v Sweden [2002] ECR I–4147; Case C–541/99, Cape Snc v Idealservice Srl [2001] ECR I–9049; Case C–372/99, Commission v Italy [2002] ECR I–819; Case C–473/2000, Cofidis SA v Fredout [2002] ECR I–10875; Case–237/02 Freiburger Kommunalbauten GmbhH Baugesellschaft & Co. KG v Hofstetter [2004] ECR I–3403; Case–70/03 Commission v Spain [2004] ECR I–7999.

⁹ 1993 Directive, above n 1, Art 8.

¹⁰ Ibid, recitals 1 and 2.

¹¹ Ibid, Art 3(1), below pp. 253–55.

¹² Ibid, Art 3(3) and Annex.

¹³ Ibid, Art 6(1).

¹⁴ Ibid, Art 7.

¹⁵ In the UK, Art 7 was first implemented by the Unfair Terms in Consumer Contracts Regulations 1994 SI 1994/3159, reg 8 so as to restrict prevention to the Office of Fair Trading, but in 1999 the 1993 Directive’s Art 7 was reimplemented by the Unfair Terms in Consumer Contracts Regulations 1999, SI 1999/2083 regs 10–13 so as to extend the role of prevention to a number of public bodies and to the Consumers’ Association.

¹⁶ European Parliament and Council Directive 98/27/EC of 19 May 1998 on injunctions for the protection of consumers’ interests, OJ 1998 L 166/051, Art 1(2) and Annex, no 9.

¹⁷ Below, pp 246–47.

¹⁸ 1993 Directive, above n 1, Art 4(2), below pp. 250-51.

¹⁹ On this see Stuyck, J Terry, E and Van Dyck, T ‘Confidence through Fairness? The New Directive on Unfair Business-to-Commercial Practices in the Internal Market’ (2006) 43 CMLRev 107 Google Scholar; Weatherill, S and Bernitz, U (eds) The Regulation of Unfair Commercial Practices under EC Directive 2005/29: New Rules and New Techniques (Oxford, Hart Publishing, forthcoming)Google Scholar.

²⁰ 2005 Directive, above n 4, Art 5(2).

²¹ Ibid, Art 6–9.

²² Ibid, Art 5(5)(1), Annex I.

²³ Ibid, Art 11–13.

²⁴ Council Directive 84/450/EEC of 10 Sept 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, OJ 1984 L 250/17, Art 4.

²⁵ 2005 Directive, above n 4, Art 11(1).

²⁶ Ibid, Art 13.

²⁷ Ibid, Art 3(4).

²⁸ Ibid, Art 4. Qualifications on this position are found in Art 3(5), (7)–(9). On this see Howells, G ‘Unfair Commercial Practices Directive—a Missed Opportunity?’ in Weatherill, S and Bernitz, U (eds), above n 19.

²⁹ 2005 Directive, above n 4, Art 6(1), 7(1) and (2).

³⁰ This is to be found in the role of ‘material distortion’ of a consumer’s ‘economic behaviour’ in defining an unfair commercial practice (ibid, Art 5(2)(b) ), and its definition of material distortion of economic behaviour in terms of the appreciable impairment of ‘the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise’ (Art 2(c)).

³¹ On the effect of Art 3(2) of the 2005 Directive more generally, see Whittaker, S ‘The Relationship of the Unfair Commercial Practices Directive to European and National Contract Law’ in Weatherill, S and Bernitz, U (eds), above n 19.

³² Above, pp 231–32.

³³ This view can be supported by analogy by reference to recital 9 of the 2005 Directive, above n 4, which explains the effect of the ‘without prejudice’ provision found in Art 3(3) relating to ‘Community or national rules relating to the health and safety aspects of products’, stating that ‘[t]he Member States will thus be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety in their territory wherever the trader is based, for example in relation to alcohol, tobacco or pharmaceuticals’. So, in this situation the general principle found in Art 4 (‘internal market’) which forbids Member States from ‘restricting the freedom to provide services nor restrict the free movement of goods for reasons falling within the field approximated by this Directive’ is dis-applied. In the result, the force of the ‘without prejudice’ clause is to allow a particular area of law to continue in an unrestricted way, rather than in an unaffected way, since it would be clearly incorrect to say that the 2005 Directive has no effect on commercial practices of traders affecting health and safety.

³⁴ See further, Whittaker, S, above n 31.

³⁵ Below, pp 243–245.

³⁶ Commission Communication to the Council and the European Parliament concerning language use in the information of consumers in the community, COM(93)456 final, 10 Nov 1993.

³⁷ Ibid, para 2.

³⁸ Ibid, para 11.

³⁹ Ibid, para 26.

⁴⁰ Ibid, paras 38–42.

⁴¹ Timeshare Directive, above n 2.

⁴² See also, ibid, recital 10.

⁴³ 1997 Directive, above n 5.

⁴⁴ Ibid, recital 8.

⁴⁵ Ibid, Art 4 and 5. A similar approach may be seen in the EC Commission’s report on the application of the 1993 Directive five years after its enactment, though it recognised the increasing use of contracts drawn up in a language other than a consumer’s own as a problem: EC Commission Report (2000), above n 7, at 25.

⁴⁶ European Parliament and Council, Directive 2002/65/EC of 23 Sept 2002 concerning the distance marketing of consumer financial services, OJ 2002 L 271/16.

⁴⁷ Ibid, Art 3(3)(g).

⁴⁸ Ibid, recital 31.

⁴⁹ Above, p 237.

⁵⁰ See the EC Commission’s most recent document on European contract law, which states that ‘the principle of freedom of contract needs to be emphasised as crucial for the process [of development of a Common Frame of Reference]’: Report from the Commission, First Annual Progress Report on European Contract Law and the Acquis Review, COM(2005)456 final, para 2.6.3.

⁵¹ See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, A New Framework for Multilingualism, COM(2005)596 final.

⁵² EEC Council Regulation No 1 determining the languages to be used by the European Economic Community, OJ 1958 17/385.

⁵³ Council Resolution of 14 Feb 2002 on the promotion of linguistic diversity and language learning in the framework of the implementation of the objectives of the European Year of Languages 2001, OJ 2002 C 50/1 at 2, 4th point of emphasis.

⁵⁴ A New Framework for Multilingualism, above n 51, at 7 (table) which states that 47% of European citizens are estimated to be able to speak English. The next most common languages are German (30%), French (23%) and Italian (12%).

⁵⁵ For example, the French legislation of 1994, loi no 94–665 an 4 août 1994 relative à l’emploi de la langue française known as the ‘Loi Toubon’.

⁵⁶ Instead, the European institutions have coped with the problems faced by having 20 (soon to be 21) official languages by resorting to use of ‘pivot languages’, on which see B, Pozzo and Jacometti, V (eds) Multilingualism and the Harmonisation of European Private Law (Dordrecht Kluwer Law International, 2006)Google Scholar.

⁵⁷ See notably Case C–369/89, Piageme v Peeters [1991] ECR I-2971; Case C–85/94, Piageme v Peeters [1995] ECR I–2955; Case C–385/96, Goerres [1998] ECR 1–4431 whose combined effect was summarised in Case C–366/98, Criminal Proceedings against Geffroy and Casino France SNC [2000] ECR I–06579, paras 24–29.

⁵⁸ Council Directive 79/12/EEC of 18 Dec 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer, OJ 1979 L 33/01.

⁵⁹ Case C–366/98, Criminal Proceedings against Geffroy and Casino France SNC [2000] ECR I–06579 para 28.

⁶⁰ Case C–85/94 Piageme v Peeters [1995] ECR I–2955.

⁶¹ Loi no 94–665, above n 55.

⁶² Case C–366/98, Criminal Proceedings against Geffroy and Casino France SNC [2000] ECR I–06579 (though formally the legislation in question was made under a power in a loi of 1905).

⁶³ Noguez, D ‘Point de vue, Une langue si “easy”‘ Le Monde, 8 Aug 2002.

⁶⁴ Com(2005)96 final, para III.2.

⁶⁵ The Communication refers to Directive 2000/13/EC of the Parliament and of the Council of 20 Mar 2000 on the approximation of the laws of the Member States to the labelling, presentation and advertising of foodstuffs, OJ 2000/109/29, Art 16(1).

⁶⁶ A New Framework for Multilingualism, above n 51, at para III.2.

⁶⁷ Above, p 234.

⁶⁸ Below, p 250.

⁶⁹ 2005 Directive, above n 4, at recital 6.

⁷⁰ Ibid, Art 5(2).

⁷¹ Ibid, Art 2(h).

⁷² Ibid, Art 9.

⁷³ Ibid, Art 7(1). Cf Directive 84/450/EEC, above n 24, Art 2.

⁷⁴ 2005 Directive, above n 4, Art 2(k).

⁷⁵ Ibid, Art 7(2) (emphasis added).

⁷⁶ Ibid, Art 7(4).

⁷⁷ Above, pp 233–34.

⁷⁸ This annex is given effect to by 2005 Directive, above n 24, Art 5(5).

⁷⁹ On this see Weatherill, S ‘Who is the “Average Consumer”?’ in Weatherill, S and Bernitz, U (eds) above n 19.

⁸⁰ 2005 Directive, above n 4, Art 2(c).

⁸¹ Ibid, Art 5(b).

⁸² Emphases added.

⁸³ 2005 Directive, above n 4, Art 2(c).

⁸⁴ Case C–44/01, Pippig Augenoptik GmbH & Co KG v Hartlauer Handelsgesellschaft mbH [2003] ECR I–3095, para 55.

⁸⁵ Notably, Case C–210/96 Gut Springenheide GmbH and Rudolf Trusky v Oberkreisdrektor des Kreises Steinfurt-Amt für Lebensmittelüberwachung [1998] ECR I–04657 (marketing standards for eggs); Case C–220/98 Estée Lauder Cosmetics GmbH & Co OHG v Lancaster Group GmbH [2000] ECR I–00117 (marketing of cosmetics).

⁸⁶ Ibid, para 29. For example, Case C–313/94, Fratelli Graffione SNC v Fransa [1996] ECR I–06039.

⁸⁷ Cf above, p 238.

⁸⁸ Above, p 234.

⁸⁹ Above, pp 231–32.

⁹⁰ Art 5(2) of the original draft of the 1993 Directive referred to by the EC Commission Report (2000), above n 7, at 17–18.

⁹¹ SirTreitel, Guenter The Law of Contract 11th edn (London, Sweet and Maxwell, 2003) 280 Google Scholar.

⁹² Beale, H ‘Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts’ in Beatson, J and Friedmann, D (eds) Good Faith and Fault in Contract Law (Oxford, Clarendon Press, 1995) 231, 245Google Scholar.

⁹³ See 1993 Directive, above n 1, Art 3 and 4. For further discussion see Beale, H (ed) Chitty on Contracts, 29th edn (London, Sweet and Maxwell, 2004) para 15-042Google Scholar onwards.

⁹⁴ Office of Fair Trading Unfair Terms in Consumer Contracts Bulletin No 2 (Sept 1996) 8.

⁹⁵ 1993 Directive, above n 1, Art 6.

⁹⁶ Ibid, Art 7; Unfair Terms in Consumer Contracts Regulations 1999, above n 15, regs 10–15.

⁹⁷ The question is discussed by MacDonald, E ‘Unfair Terms in Consumer Contracts’ in Furmston, M (ed) The Law of Contract 2nd edn (London, Butterworths, 2003) 656 Google Scholar; cf Beale, H, above n 93, at paras 15-090–15-091.

⁹⁸ EC Commission Report (2000), above n 7, at 18.

⁹⁹ Treitel, G, above n 91, at 280.

¹⁰⁰ Case C–70/03, Commission v Spain [2004] ECR I–7999.

¹⁰¹ Ibid, para 16.

¹⁰² Cf Case C–70/03, Commission v Spain [2004] ECR I–7999, Opinion of AG Geelhoed, para 13.

¹⁰³ Office of Fair Trading, above n 94, at 9.

¹⁰⁴ Directive 98/27/EC, above n 16, Art 1(2) and Annex, no 9.

¹⁰⁵ Emphasis added.

¹⁰⁶ Director General of Fair Trading v First National Bank [2002] 1 AC 48; Whittaker, S ‘Assessing the Fairness of Contract Terms: the Parties’ “Essential Bargain,” its Regulatory Context and the Significance of the Requirement of Good Faith’ [2004] Zeitschrift für Europäisches Privatrecht 75. This restriction on the ambit of the requirement of fairness appears to have been directly inspired by the experience of German law as advanced by the influential article of Brandner, HE and Ulmer, P ‘The Community Directive on Unfair Terms in Consumer Contracts: Some Critical Remarks on the Proposal Submitted by the EC Commission’ (1991) 28 CMLRev 645 Google Scholar. And see further Cámara Lapuente, S., El control de las cláusulas “abusivas” sobre elementos esenciales del contrato (Thomas Aranzadi, 2006)Google Scholar.

¹⁰⁷ EC Commission Report (2000), above n 7, at 15.

¹⁰⁸ Tenreiro, M ‘The Community Directive on Unfair Terms and National Legal Systems’ [1995] European Review of Private Law 273, 283, n 31: citing the view of Professor Roppo; Beatson, J (ed) Anson’s Law of Contract 28th edn (Oxford, Oxford University Press, 2002) 307 Google Scholar.

¹⁰⁹ Beale, above n 93, at para 15–090, n 348 raises the question.

¹¹⁰ Above, pp 243–45.

¹¹¹ Above, p 240.

¹¹² There are bare suggestions that it may in Beale, H, above n 93, at para 15-090.

¹¹³ Above, p 247.

¹¹⁴ Whittaker, S above n 106.

¹¹⁵ This is argued by Chitty on Contracts, above n 93, at para 15-047. On the various mean ings of good faith in European private laws see Zimmermann, R and Whittaker, S Good Faith in European Contract Law (Cambridge, Cambridge University Press, 2000) 690 Google Scholar. For other views as to the possible significance of the requirement of good faith for the purposes of this Directive see in particular: Collins, H ‘Good Faith in European Contract Law’ (1994) 14 OJLS 229 CrossRefGoogle Scholar; Joerges, C ‘The Europeanisation of Private Law as a Rationalisation Process and as a Contest of Legal Disciplines—an Analysis of the Directive on Unfair Terms in Consumer Contracts’ (1995) 3 ERPL 175, 183–4Google Scholar; Weatherill, S ‘Prospects for the Development of European Private Law Through “Europeanisation” in the European Court—the Case of the Directive on Unfair Terms in Consumer Contracts’ (1995) 3 ERPL 307, 316–17Google Scholar; Howells, G and Weatherill, S Consumer Protection Law 2nd edn (Aldershot, Ashgate, 2005) 285–87Google Scholar. cfTenreiro, M ‘The Community Directive on Unfair Terms and National Legal Systems’(1995) 3 ERPL 273, 278–9Google Scholar who argues that the requirement of good faith is not a supplementary requirement at all (though in the face of recital 16).

¹¹⁶ Above, p 248.

¹¹⁷ Ibid.

¹¹⁸ Above, p 245.

¹¹⁹ [2001] Lloyd’s Rep Bank 240, 250.

¹²⁰ Above, pp 231–32.

¹²¹ 1993 Directive, above n 1, Art 6(1).

¹²² Above, p 251.

¹²³ Above, p 250.

¹²⁴ Above, p 234–35.

¹²⁵ Above, p 232–34.