DIRECTIVE 93/13/EEC on unfair terms in consumer contracts
Council, DIRECTIVE 93/13/EEC on unfair terms in consumer contracts, 93/13/EEC, 05.04.1993
|Topics||Consumer, Contract, Transparency|
See NEBBIA P., Unfair Contract Terms in European Law. A Study in Comparative and EC Law, Oxford and Portland, Oregon, Hart Publishing, 2007.
IoT products' providers - via the Terms of Service related to the services that make the product usable for the customer - often reserve the right to discontinue - even permanently - those services, without notice and without reason.
- Can we consider this clause as unfair? For example on the basis of Annex I, paragraph 1, letter g): "enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so".
Art. 3(2): "A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract".
- In the online dimension, is it sufficient consumer’s expressed consent, or is there need for a true negotiation, in order for the contract clause to be considered fair?
Art. 3(2): "Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him".
- If the Directive states that - when a clause has been drafted in advance - it shall always be regarded as not individually negotiated, is it anyway possible for the seller or supplier to prove the contrary?
Annex I, par. 1(c): making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone is always an unfair term.
- Could we therefore consider that the provision in the ToS which says that the provision of the service may cease without reason at any time is an unfair term, given the fact that the customer by contrast is bound by the ToS?
Annex I, par. 1(j), deals with unilateral alteration of the terms of the contract without a valid reason specified in the contract (but see also Annex I, par. 2(b)).
- It could be applied to clauses of IoT contracts which state that the provider can change in any moment the terms of the contract, and that the the customer, by using the product, automatically consent to these changes.
Annex I, par. 1(k), deals with unilateral alteration of the characteristics of the product or of the service without a valid reason.
- This could be applied to the contractual clauses which confer the supplier the right to automatically alter the software, where this update is not motivated by an update or a fixing.