Private Law Theory

ABSTRACT
The scope of application of the Unfair Contract Terms Directive (UCTD) is defined as ‘delicate compromises between the legal traditions of different Member States’. These compromises are the results of the alignment of various national models of regulation of the unfairness control of contract terms based on different approaches (market oriented approach or consumer/weaker-party-protection approach). In that sense, the scope of application of the UCTD is the reflection of some kind of balancing between various goals it was meant to achieve – the establishment and the functioning of the internal market based on free competition, private autonomy, freedom of contracting and ensuring, at the same time, a high level of consumer protection when entering into consumer contracts. However, a question arises whether all those compromises, negotiated over thirty years ago, when the rules on the scope of application of the UCTD were drafted, could even today be regarded as the optimum balance between the values the UCTD was meant to protect. Therefore, it is not at all surprising that the European Court of Justice (ECJ) has up to now been in situations, in as many as several hundreds of cases, to interpret the UCTD, including its provisions on the scope of application. The text analyses the current trends in the interpretations of the scope of application of the UCTD in the case law of the ECJ. The main goal has been to highlight the arguments by which the Court has interpreted the Directive’s scope of application and to see whether there are any new tendencies in the case law of the ECJ when interpreting the UCTD by showing that, in practice, both its personal and material scopes of application have changed, and if that is the case, in what direction these changes are going.

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Tatjana Josipović, Scope of Application of the Unfair Contract Terms Directive: Is It Time for a New Compromise?, European Review of Private Law volume 32, issue 3 (2024).