The interaction between consumer protection rules on unfair contract terms and unfair commercial practices: Perenicová and Perenic

Publishers Abstract:
The annotated judgment is most interesting and innovative in that the ECJ addresses, for the very first time, the interaction between a number of legal instruments with which EU law seeks to guarantee consumer protection against certain unfair business practices. Those instruments are primarily Directive 93/13 concerning (not individually negotiated) terms in consumer contracts and Directive 2005/29 on business-to-consumer commercial practices, to which the referring court explicitly referred.

It is well-known that Directive 93/13 prohibits unfair terms through a general prohibition, an indicative, grey list and a specific prohibition of non-transparent written terms and that Directive 2005/29 prohibits unfair commercial practices through an exhaustive black list, general prohibitions of misleading or aggressive practices and a catch-all prohibition of unfair practices. Member States must ensure that adequate and effective means exist to prevent the continued use of unfair terms in consumer contracts and to combat unfair commercial practices.

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