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2020 | OriginalPaper | Buchkapitel

Control of Price Related Terms in Standard Form Contracts: General Report

Judicial Control and Other Means of Price Control

verfasst von : Yeşim M. Atamer, Pascal Pichonnaz

Erschienen in: Control of Price Related Terms in Standard Form Contracts

Verlag: Springer International Publishing

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Abstract

Competitive market economies work with the basic assumption that the supply side cannot charge more than their cost of supply given that rational and perfectly well-informed customers know their preferences and are responsive to any price change in the market. However, markets are never fully transparent, and findings of behavioural sciences show that especially consumers act based on imperfect rationality due to systematic biases. Pricing structures that serve to hide rather than reveal the real cost of the goods and services pose one of the main challenges to markets as they abuse biases on the demand side to the greatest extent possible. “Hiding” price related terms in standard form contracts is a prominent way of creating non-salient prices and is therefore a debated issue in many recent high court decisions of different countries. This paper conducts a comparative study on developments in 28 jurisdictions and discusses the efficiency of ex ante regulatory as well as ex post judicial intervention. The results show that controlling prices and price related terms is a multifaceted and complicated issue which entails a holistic approach, involving more transparency, smarter information to be provided to customers, but sometimes also hard paternalistic interventions such as price caps. Besides, more effective ways of collective proceedings and redress mechanisms need to be implemented.

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Nächstes Kapitel Control of Price Related Terms in Standard Form Contracts in the European Union: The Innovative Role of the CJEU’s Case-Law

Nur mit Berechtigung zugänglich

See for a comparative overview Grebieniow (2019), pp. 3–26.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ 1993, L 95/29.

See in detail Bar-Gill (2012); Bar-Gill (2014), pp. 465–490; Zamir and Teichman (2018), pp. 281–324.

See e.g. Grubb (2015), p. 310. The author uses the example of an electricity tariff including a fixed fee, an initial marginal rate, and sometimes also a threshold and subsequent marginal rate. Zamir and Teichman (2018), pp. 297–298; Atamer (2017), pp. 634–635.

Shepperd et al. (2015), pp. 232–237; Bar-Gill (2009), p. 1120; Faure and Luth (2011), p. 344; Mathis and Steffen (2015), p. 40; Zamir and Teichman (2018), pp. 61–64.

Bubb and Pildes (2014), pp. 1595 and 1649 ff.; Zamir and Teichman (2018), pp. 64–66. A good example is the credit-card market in Turkey. Recurring studies have revealed that Turkish consumers choose credit cards not according to the default interest rate, but by comparing different reward programs, or the option to pay the balance back in instalments. Turkish credit card users’ optimism manifests itself in the expectation of maintaining a zero-credit balance. This underestimation bias results in distorted competition and credit card interest rates well above marginal cost. Miscalculation of future borrowing shifts competition in the credit card market from the long-term price elements such as interest rates to short-term price elements such as annual fees, or other card related features. See Atamer (2017), p. 633 and Turkey Report.

Bar-Gill (2009), p. 1120.

Bubb and Pildes (2014), p. 1642.

See in detail on such exploitation examples the book of two Nobel laureates: Akerlof and Shiller (2015).

Bar-Gill (2012), pp. 17–23; Bar-Gill (2014), pp. 471–474.

For example, bundling the credit agreement with a payment protection insurance; or broadband internet, subscription-based television services and landline telephones; or cell phone handsets with an internet and calling plan are common practices.

Examples from the credit card market are e.g. charging an annual fee but in addition also a cash-advance fee, balance-transfer fee, foreign currency-conversion fees, expedited payment fee, late payment fee, over-limit fee, returned check fee, credit limit increase fee, and even a no activity fee. In a study of 2013, the Banking Authority of Turkey has found 65 different items for which banks charged fees. See on price partitioning as a means of influencing consumer decision making: Van Boom (2011), pp. 364 ff.

For further explanations see the EU Report.

CJEU Judgment of 23 April 2015, Van Hove, C-96/14, EU:C:2015:262, para 33. Parallel also CJEU Judgment of 3 June 2010, Caja de Ahorros y Monte de Piedad de Madrid, C-484/08, EU:C:2010:309, para 34; CJEU Judgment of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, EU:C:2014:28, para 49.

CJEU Kásler and Káslerné Rábai (n 14).

CJEU Judgment of 21 March 2013, RWE Vertrieb, C-92/11, EU:C:2013:180.

CJEU Judgment of 23 October 2014, Schulz and Egbringhoff, C-359/11 and C-400/11, EU:C:2014:2317.

CJEU Judgment of 16 January 2014, Constructora Pincipado, C-226/12, EU:C:2014:10.

CJEU Judgment of 14 March 2013, Aziz, C-415/11, EU:C:2013:164.

See also UK Report.

As is the case for some sectoral SCT in e.g. Croatia.

See China Report.

See for a Swiss perspective, Pichonnaz (2017), Art. 8 LCD para 4.

China Report; South Africa Report.

See on these elements Austria Report.

See furthermore the CJEU which considers that the good faith requirement implies to determine whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations: CJEU Aziz (n 19), para 69; see Belgium Report.

Art. 3 Directive 93/13/EEC therefore provides that a term shall always be regarded as not individually negotiated where it has been drafted in advance, particularly in the context of a pre-formulated standard contract. Even if a specific term has been negotiated the Directive applied to the rest of the contract as long as the supplier does not prove that the rest has been negotiated too. See also French Report and Art. L. 212-1 al. 6 French CConsom.

But see also some US Decisions, which mention the Pay Now Terms Later system (or “shrinkwrap”), in which the parties agree on the main terms of the transaction immediately, but the SCT arrive later, when the purchase item is delivered and opened. Some courts have accepted the inclusion of the SCT, some have rejected it. See among others Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir 1997); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); Specht v. Nescape Communications Corporation, 306 F.3d 17 (2nd Cir. 2002).

For some cases see Belgium Report which mentions a Decision of the Belgian Cassation Court requiring that a hyperlink to SCT actually works and Italian Report.

This is typical for the US Court practice, see among others Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014); Specht v. Netscape Communications Corp., 306 F.3d 17 (2nd Cir. 2002).

See n 64.

See Italian Report, which cites at least two Supreme Court cases, Cass. 26 February 2004, n. 3863, Foro it., 2004, 1, 2132, annotated by Bitetto; Cass., 20 December 2005, n. 28232; Foro it., 2006, I 2065.

See Switzerland Report; UK Report (red-hand rule).

See below p. 18.

See Canada Common Law Report; China Report; South Africa Report.

D. 45,1,38, 18 (Ulpianus libro 49 ad Sabinum): “In stipulationibus cum quaeritur, quid actum sit, verba contra stipulatorem interpretanda sunt.”

See Canada Common Law Report; Sattva Capital v Creston Moly, 2014 SCC 53, para 50.

See EU Report.

See among others Belgium Report; France Report.

E.g. Belgium Report; Canada Common Law Report; Israel Report (where also for B2C contracts no special SCT control is practiced).

See e.g. Austria Report; Croatia Report; Denmark Report; France Report; South Africa Report.

See p. 14 et seq.

See p. 16.

See for instance Canada Civil Law Report. See also below p. 24.

See Romania Report; Switzerland Report.

Koller (2008), pp. 943–953; Pichonnaz (2017), para 94.

Canada Common Law Report.

See the Canada Common Law Report and Ledcor v Northbridge, 2017 SCC 7, para 24.

See for instance South Africa Report.

See Estonia Report.

See Brazil Report; Chile Report; Croatia Report; Romania Report; Switzerland Report.

See e.g. Switzerland Report.

Brazil Report.

Exception: Canada Common Law Report.

See China Report; Croatia Report; Taiwan Report.

See for instance Israel Report; Italy Report; Netherlands Report.

Croatia Report; Israel Report; Italy Report; South Africa Report.

“Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer” (emphasis added).

100

See below p. 33 et seq.

101

See EU Report.

102

CJEU Aziz (n 19), para 69.

103

See Belgium Report (Belgian legislator did not incorporate the requirement of good faith in the Belgian general provision on unfair terms).

104

E.g. Belgium Report; Italy Report.

105

See for instance Estonia Report; France Report. However, Denmark is an outlier as it did not transpose the Directive 93/13/EEC Annex into Danish law and supported the Swedish position in front of the CJEU by stressing that the general clause applicable would protect consumers in a parallel way. The CJEU favoured this argumentation, CJEU Judgment of 7 May 2002, Commission/Sweden, C-478/99, EU:C:2002:281.

106

CJEU Judgment of 21 December 2016, Biuro podróży Partner, C-119/15, EU:C:2016:987, paras 38 ff.

107

CJUE Biuro podróży Partner (n 106), para 40.

108

CJEU Judgment of 26 January 2017, Banco Primus, C-421/14, EU:C:2017:60, paras 59–61 with references; CJEU Aziz (n 19), paras 66–71.

109

CJEU Banco Primus (n 108), para 59; see also Germany Report; Turkey Report.

110

See among others Switzerland Report; Turkey Report.

111

E.g. Turkey Report.

112

See Brazil Report; South Africa Report.

113

See South Africa Report; Turkey Report.

114

See also the EU Report for a broader discussion.

115

Austria Report; EU Report. See especially CJEU Judgment of 21 December 2017, Gutiérrez Naranjo, C-154/15, C-307/15 and C-308/15, EU:C:2016:980, para 57; CJEU Judgment of 14 June 2012, Banco Español de Crédito, C618/10, EU:C:2012:349, para 65; CJEU Judgment of 21 January 2015, Unicaja Banco and Caixabank, C-482/13, C-484/13, C-485/13 and C-487/13, EU:C:2015:21, para 31. See however Belgium Report.

116

See especially CJEU Gutiérrez Naranjo (n 115), para 60 (“the national court may not revise the content of unfair terms, lest it contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms”); see also CJEU Unicaja Banco and Caixabank (n 115), para 31; CJEU Kásler and Káslerné Rábai (n 14), para 78; CJEU Banco Español de Crédito (n 115), para 69. CJEU Judgment of 30 Mai 2013, Asbeek Brusse and de Man Garabito, C-488/11, EU:C:2013:341, paras 57 ff. (no reduction of a penalty clause).

117

CJEU Gutiérrez Naranjo (n 115), para 57.

118

CJEU Banco Español de Crédito (n 115), para 65.

119

Belgium Report.

120

Estonia Report.

121

Estonia Report; but also many other systems, see e.g. Switzerland Report.

122

Switzerland Report; Pichonnaz (2017), Art. 8 LCD para 172; regarding the approach to control surprising terms see SFT (Swiss Federal Tribunal), Decision of 18 December 2008, 4A_404/2008, reason 5.6.3.2.1.

123

See Spain Report, which mentions that an adaptation of contract is allowed for B2B contracts, this not being possible for B2C contracts according to CJEU Banco Español de Crédito (n 115), para 73.

124

For such rationale of no intervention in case of bad faith, see among other decisions, Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28, 37 (Tenn. 1984), in which the court noted: “We recognize the force of the objection that judicial modification could permit an employer to insert oppressive and unnecessary restrictions into a contract knowing that the courts can modify and enforce the covenant on reasonable terms. […] [T]he employer may have nothing to lose by going to court, thereby provoking needless litigation. If there is credible evidence to sustain a finding that a contract is deliberately unreasonable and oppressive, then the covenant is invalid.”; see also Jenkins v. Jenkins Irrigation, Inc., 259 S.E.2d 47, 51 (Ga. 14 1979).

125

CJEU Judgment of 30 May 2013, Jőrös, C-397/11, EU:C:2013:340, para. 41 (“In this connection, the Court has stated that, where the national court considers a contractual term to be unfair, it must not apply it, except if the consumer opposes that non-application, after having been informed of it by that court. See, to that effect, CJEU Judgment of 4 June 2009, Pannon GSM, C-243/08, EU:C:2009:350, para. 35”); CJEU Unicaja Banco et Caixabank (n 115), para 33.

126

See p. 91; as well as some suggestions in France on the “inopposabilité” of those terms: Peglion-Zika (2013), pp. 199–225.

127

See EU Report; Spain Report.

128

See EU Report; German Report.

129

See CJEU Gutierrez Naranjo (n 115), paras 49 and 51; CJEU Banco Primus (n 108), para 62.

130

EU Report.

131

CJEU Judgment of 28 July 2016, Verein für Konsumenteninformation, C-191/15, EU:C:2016:612, para 71; EU Report.

132

See for EU, the Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC, COM(2018) 184/3; presented in relation with the so-called “New Deal”, April 11, 2018: http://europa.eu/rapid/press-release_MEMO-18-2821_en.htm; as well as for the collective redress mechanism see The New Deal for Consumers: How will the new Collective Redress Mechanism Work?: https://ec.europa.eu/info/sites/info/files/ndc_factsheet4_redress_mechanism.pdf.

133

See for a detailed overview of 28 jurisdictions and a general report Micklitz and Saumier (2018).

134

See also CJEU Judgment of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C-240/98, EU:C:2000:346; CJEU Judgment of 26 October 2006, Mostaza Claro, C-168/05, EU:C:2006:675; parallel Turkey Report.

135

Council Draft No. 3, ALI Restatement of the Law Consumer Contracts (December 20, 2016), Reporters’ Introduction, p. 4.

136

US Supreme Court, 21 May 2018, Epic Systems Corp. v. Lewis, 584 US_2018 and already US Supreme Court, 20 June 2013, American Express Co. v. Italian Colors Restaurant, 570 US_2013.

137

Accepted in e.g. Austria; Belgium; Brazil; Croatia; Italy; Germany; Greece; Romania; Russia; Turkey.

138

Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests, OJ 2009, L 110/30.

139

Art. 3 Directive 2009/22/EC defines “qualified entities” as “any body or organisation which, being properly constituted according to the law of a Member State, has a legitimate interest in ensuring that the provisions referred to in Article 1 are complied with, in particular: (a) one or more independent public bodies, specifically responsible for protecting the interests referred to in Article 1, in Member States in which such bodies exist; and/or (b) organisations whose purpose is to protect the interests referred to in Article 1, in accordance with the criteria laid down by the national law”.

140

See for some CJEU cases brought by “qualified entities”, EU Report.

141

Proposal for a Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC, COM(2018) 184/3.

142

Argentina Report; Estonia Report; Israel Report; Turkey Report.

143

Israel Report.

144

Brazil Report; Israel Report.

145

Belgium Report; Croatia Report; Israel Report (Commissioner of Consumer Protection); Switzerland Report; Turkey Report.

146

Russia Report: special governmental agency (“Federal Agency for Control in the Sphere of Consumer’s Rights Protection and Human’s Welfare”).

147

Austria Report.

148

In Turkey e.g. consumers are exempt from paying any fees when suing in specialized consumer courts.

149

Belgium Report; Denmark Report.

150

CJEU Judgment of 26 April 2010, Invitel, C-472/10, EU:C:2012:242.

151

See for a parallel solution Croatia Report.

152

See Werro and Pichonnaz (2015), pp. 268 ff.; see also Belgium Report; EU Report.

153

CJEU Biuro podróży Partner (n 106), para 42.

154

See p. 21 and Austria Report, which considers that the decision is de facto often observed.

155

(n 141).

156

See Belgium Report; Canada Common Law Report; Chile Report; China Report; Croatia Report; Israel Report; Japan Report; Singapore Report; Taiwan Report; Turkey Report; UK Report.

157

South Africa Consumer Protection Act 68 of 2008, section 48(1)(a).

158

DeMuth (1986), p. 216.

159

See e.g., Cooter and Ulen (2012), pp. 18–29; Kirchgässner (2008), pp. 59–61.

160

See below p. 48 et seq.

161

Russia Report; Switzerland Report; Turkey Report.

162

Canada Civil Law Report; Chile Report.

163

Canada Common Law Report; China Report.

164

Canada Civil Law Report.

165

Russia Report.

166

Underlined also in the Austria Report; Germany Report; Turkey Report; UK Report. See for details, Schillig (2011), pp. 933–963.

167

Some EU Member States did not transpose such restriction and make therefore no difference between main subject matter and ancillary price-related terms. See EU Report for a general overview. See also Croatia Report; after the Croatian Franak case, in which credits linked to Swiss franc were unsuccessfully challenged, the Croatian High Commercial Court reversed its position on 14 June 2018 and found that a contract clause denominating credits in Swiss francs was unfair for lack of transparency of the price-related contract term; see also Danish Report; Estonia Report and the Slovenian Report, which underlines that there is no transposition of art. 4(2) Directive 93/13/EEC, but that the Supreme Court does control some price related terms. Italian law seems not to have explicitly relied upon that distinction, see Italian Report. Though influenced by EU law, Swiss law does not make a difference between main subject matter and ancillary contracts (Switzerland Report).

168

See for details the EU Report.

169

E.g. BGH, 13. 11. 2012 – XI ZR 500/11, (2013) NJW, 995; BGH, 7.6.2011 – XI ZR 388/10, (2011) BKR, 418; BGH, 7.5.1991 – XI ZR 244/90, (1991) Zeitschrift für Wirtschaftsrecht (ZIP), 857. For details see Germany Report.

170

CJEU Van Hove (n 14), para 33. Parallel also CJEU Caja de Ahorros y Monte de Piedad de Madrid (n 14), para 34; CJEU Kásler et Káslerné Rábai (n 14), para 49; CJEU Judgment of 20 September 2017, Andriciuc and others, C-186/16, EU:C:2017:703, para 35.

171

BGH, 13.05.2014 – XI ZR 405/12, (2014) Neue Juristische Wochenschrift (NJW), 2420; BGH, 28.10.2014 – XI ZR 348/13, (2014) NJW, 371.

172

OFT v Abbey National plc and others [2009] UKSC 6. The views expressed by Lord Walker and Lord Mance were endorsed by Lady Hale (para 92) and Lord Neuberger (para 119). Lord Phillips’ argumentation and final decision are essentially the same (paras 78–91), however, underlining that the discussion must be more about whether the method of pricing is fair, and not the question of whether the relevant charges form part of the price or remuneration for the package of services provided (para 80). See for details UK Report.

173

OFT v Abbey National, para 40 (Lord Walker).

174

OGH 30 March 2016 (6 Ob 13/16d) EvBl-LS 2016/119; Austria Report.

Israel Report.

Israel Report.

Argentina Report.

Turkey Report.

Canada Civil Law Report.

180

Canada Civil Law Report.

181

CJEU Andriciuc and others (n 170), para 44; CJEU Kásler and Káslerné Rábai (n 14), paras 71 and 72; CJEU Judgment of 9 July 2015, Bucura, C-348-14, EU:C:2015:447, para 52; see also EU Report.

182

CJEU Andriciuc and others (n 170), para 45; CJEU, Kásler and Káslerné Rábai (n 14), para 75; CJEU Van Hove (n 14), para 50; also EU Report.

183

Israel Report.

184

Turkey Report.

185

See also the EU Report for the discussion on ancillary price terms and the case law analysis.

Germany Report.

Japan Report.

Slovenia Report.

Turkey Report. However, due to a regulatory intervention after the High Court decision banning the electricity distribution companies from levying such fees, they were allowed to do so again.

Japan Report.

Germany Report.

Estonia Report.

Germany Report.

Germany Report.

Germany Report.

Austria Report.

Turkey Report.

Germany Report; Slovenia Report: in Slovenia, the Agency found that the banks had formed an illegal cartel which allowed them to raise the fees for the use of cash machines.

Germany Report.

Germany Report.

Austria Report.

Austria Report.

Argentina Report.

Spain Report.

Austria Report.

China Report.

Austria Report.

Estonia Report.

Estonia Report.

Spain Report; see also the EU Report on this.

211

Canada Civil Law Report.

212

CJEU Asbeek Brusse and de Man Garabito (n 116), paras 57 ff.; see also EU Report.

213

CJEU Unicaja Banco and Caixabank (n 115), paras 28 ff.

214

Belgium Report.

215

§ 879 (3) Austrian CC; Austria Report.

Denmark Report.

Estonia Report.

Belgium Report.

Germany Report.

Germany Report.

Japan Report.

Austria Report.

France Report.

Israel Report.

Austria Report.

Germany Report.

Italy Report.

See e.g. Belgium Report; Israel Report.

229

See Israel Report for a decision of the special SCT Tribunal in Israel, which found a contractual term allowing the retirement home to raise the monthly payment up to 5% annually over and above the rise in the Consumer Price Index, as conferring too much discretion.

Brazil Report.

Belgium Report.

Austria Report.

Argentina Report.

Switzerland Report.

DSFT 135/2008 III 1, especially p. 10, para 2.5; Switzerland Report.

Belgium Report.

Brazil Report.

Turkey Report.

Chile Report.

Croatia Report; EU Report; Greece Report; Romania Report; Slovenia Report; Spain Report.

241

CJEU Andriciuc and others (n 170), para 35; CJEU Caja de Ahorros y Monte de Piedad de Madrid (n 14), para 34; CJEU Van Hove (n 14), para 33; for an analysis, see the EU Report.

242

But the expectations regarding transparency are high: “Article 4(2) Directive 93/13/EEC must be interpreted as meaning that the requirement for a contractual term to be drafted in plain intelligible language requires financial institutions to provide borrowers with adequate information to enable them to take well-informed and prudent decisions. In that regard, that requirement means that a term relating to the foreign exchange risk must be understood by the consumer both at the formal and grammatical level and also in terms of its actual effects, so that the average consumer, who is reasonably well informed and reasonably observant and circumspect, would not only be aware of the possibility of a depreciation of the national currency in relation to the foreign currency in which the loan was denominated, but would also be able to assess the potentially significant economic consequences of such a term with regard to his financial obligations.” CJEU Judgment of 20 September 2018, OTP Bank and OTP Faktoring, C-51/17, EU:C:2018:750.

243

E.g. France Report; Turkey Report.

244

“[W]here the national court considers that a contractual term relating to the calculation of ordinary interest, such as that at issue in the main proceedings, is not in plain intelligible language, within the meaning of Article 4(2) of that directive, it is required to examine whether that term is unfair within the meaning of Article 3(1) of the directive. In the context of that examination, it is the duty of the referring court, inter alia, to compare the method of calculation of the rate of ordinary interest laid down in that term and the actual sum resulting from that rate with the methods of calculation generally used, the statutory interest rate and the interest rates applied on the market at the date of conclusion of the agreement at issue in the main proceedings for a loan of a comparable sum and term to those of the loan agreement under consideration.” CJEU Banco Primus (n 108), para 67. See also the EU Report.

245

Spain Report. The Spanish Court decided however, against clear rules of national law, to restrict the ex tunc consequences derived from nullifying floor clauses. The reason was that banking institutions had acted in good faith and that there was a risk of serious economic difficulties if the judgment were to be applied retroactively—given the estimated cost of restitution of €4 billion. The issue was decided by the CJEU which interpreted the Directive 93/13/EEC as precluding national case-law that temporally limits the restitutory effects connected with a finding of unfairness by a court, CJEU Gutiérrez Naranjo (n 115).

Estonia Report.

Estonia Report.

Estonia Report.

Denmark Report.

Denmark Report, which indicates a case of a student loan, for which the interest rate had been reduced.

Denmark Report.

Japan Report.

Japan Report.

Austria Report.

Austria Report.

Austria Report.

In general, all reports rightly underline the importance of anti-trust regulations in the fight against unfair prices and collusion between actors to fix unfair price related terms. However, this report is focusing on other types of interventions, especially needed if there is a persisting market failure despite anti-trust regulation. As discussed above, standard contract terms cause such a transaction cost problem which cannot be overcome by spurring competition among the market actors.

258

See Annex-Questionnaire IV.

259

Sometimes the regulator has also a general right to intervene in the prices like in Israel, where the government can regulate the prices of goods and services in monopolistic and low-competition markets, for state-subsidized goods and services, for essential goods and services, and when goods or services are scarce due to exceptional circumstances. In Argentina, a country plagued with high inflation, the relevant authority can determine a special margin of profit for certain goods. See Argentina Report; Israel Report.

260

Here a possible distinction which should be born in mind is that not all countries have liberalised their energy markets.

261

Israel Report; Japan Report; Romania Report; Russia Report.

262

Canada Common Law Report; South Africa Report.

Romania Report.

Croatia Report.

Brazil Report.

Austria Report; Canada Common Law Report; Croatia Report; Israel Report; Japan Report.

267

Brazil Report.

268

Canada Common Law Report.

269

Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017, amending Regulation (EU) No 531/2012 as regards rules for wholesale roaming markets, OJ 2017, L 147/1; see also Austria Report; Belgium Report; Canada Common Law Report; China Report; Denmark Report; Italy Report; Japan Report; South Africa Report.

270

Croatia Report.

271

Japan Report; South Africa Report.

272

Brazil Report; Chile Report; Romania Report; Turkey Report.

273

Belgium Report; Canada Common Law Report; China Report; Estonia Report; Greece Report; Israel Report; Italy Report; Japan Report; Russia Report; Taiwan Report; Turkey Report.

274

Chile Report; Turkey Report.

275

Chile Report; Turkey Report.

276

Israel Report.

277

Canada Common Law Report; Croatia Report; Denmark Report; Israel Report; Romania Report; South Africa Report; Spain Report; Turkey Report.

278

Estonia Report; Greece Report; Russia Report.

279

Austria Report.

280

For PRC see China Report; for caps see Russia Report.

281

Austria Report; Belgium Report; Canada Civil Law Report; Turkey Report. However, it should be underlined that through the new chances opened by the so-called sharing economies the classical protective measures in e.g. taxi markets by introducing caps are challenged. The competition through Uber shows that the regulator possibly needs to intervene in a different way by opening up this market, making sure that the market remains open and that Uber does not become dominant in the market. But this problem will certainly occupy the agenda of regulators everywhere for some time more.

Turkey Report.

Turkey Report.

Belgium Report.

Brazil Report.

Austria Report.

Austria Report; EU Report.

288

Canada Common Law Report; EU Report; Greece Report; Turkey Report.

289

Canada Common Law Report.

290

China Report.

291

Romania Report; Taiwan Report; Turkey Report.

292

Belgium Report (capped to a 500 Euro maximum. In case of early repayment only 250 Euro); Germany Report (banned if in SCT); Greece Report (banned); Turkey Report (capped to 0.5% of the capital amount).

293

Italy Report.

294

Brazil Report; Canada Common Law Report; Denmark Report; Estonia Report; South Africa Report.

295

France Report.

296

Turkey Report. When drafting this provision, the Turkish law maker was guided by the case law of the BGH. See Atamer (2015), pp. 7–41.

297

Taiwan Report.

298

Brazil Report (10% of the debt).

299

Denmark Report.

300

Estonia Report; Turkey Report.

301

Estonia Report.

302

EU Report and Member States; Italy Report; Japan Report; Turkey Report.

303

Italy Report.

304

Canada Civil Law Report; Japan Report.

305

Spain Report.

306

France Report.

307

Canada Civil Law Report.

308

Russia Report; Turkey Report.

309

Canada Civil Law Report.

310

South Africa Report; Turkey Report.

311

Estonia Report.

312

E.g. Austria Report; South Africa Report; Turkey Report.

313

Belgium Report.

314

See also Croatia Report; Turkey Report.

315

See Switzerland Report; Swiss CO Art. 254.

316

Austria Report.

317

Estonia Report; Japan Report. In Belgium once a period of 6 months has elapsed consumers are by law entitled to cancel their subscription without any cost, at least with regard to the subscription as such; however, if at the time of subscription, a device was given for free or at a reduced price, the consumer will have to pay a compensation for the device; the amount of this compensation, equalling the residual value of the device, has to be determined beforehand in the contract. The same solution is offered in Turkey after 1 year. The consumer has a free cancellation right, however, must compensate for any reduced price it profited from due to a long-term contractual promise.

318

See in detail Bar-Gill (2012), pp. 185 ff.

319

Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, OJ 1987, L 42/48. Same also Art. 3(i) Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, OJ 2008, L 133.

320

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers, OJ 1998, L 80/27.

321

See e.g. Directive 98/6/EC (n 320); Canada Common Law Report; Chile Report; China Report; Japan Report; Turkey Report.

322

China Report; Denmark Report; EU Report; South Africa Report; Turkey Report.

323

Directive 2005/29/EC of the European Parliament and of the Council 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.

324

Canada Common Law Report; Croatia Report.

325

Croatia Report.

326

Canada Common Law Report.

327

Japan Report; Singapore Report.

328

South Africa Report.

329

Canada Common Law Report.

330

Besides the EU Member States compare e.g. Singapore Report, Turkey Report.

331

Canada Civil Law Report and Canada Common Law Report. See also South Africa Report.

332

Art. 5 Directive 2008/48/EC.

333

Directive 2014/92/EU (n 33), para 4.

334

https://www.eba.europa.eu/documents/10180/1837359/Final+draft+RTS+and+ITSs+under+PAD+%28EBA-RTS-2017-04%2C%20EBA-ITS-2017-03%2C%20EBA-ITS-2017-04%29.pdf.

335

Regulation (EC) N 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast), OJ 2008, L 293/3.

336

See also CJEU Judgment of 15 January 2015, Air Berlin, C-573/13, EU:C:2015:11.

Denmark Report.

Estonia Report.

Russia Report.

UK Report.

Belgium Report.

E.g. Austria Report; Belgium Report; France Report; Italy Report; UK Report.

343

Austria Report.

344

Belgium Report; Croatia Report; Estonia Report; Greece Report; Israel Report; Turkey Report.

345

Singapore Report.

346

EU Report; South Africa Report.

South Africa Report.

Greece Report.

South Africa Report.

Chile Report; Spanish Report.

351

Estonia Report.

352

See Taiwan Report.

353

A very good example is certainly the UK where the Financial Conduct Authority and the Competition and Markets Authority take a very active role in seeking for new remedies to address problems in consumer markets. See e.g. Helping people get a better deal: Learning lessons about consumer facing remedies, prepared by the Financial Conduct Authority and the Competition and Markets Authority, on behalf of the UK Competition Network, 2018; Digital Comparison Tools: Consumer Research Final report, prepared by Kantar Public as part of the Competition and Markets Authority’s (CMA) market study in relation to digital comparison tools, 2017.

354

CJEU Andriciuc and others (n 170), para 50.

355

CJEU RWE Vertrieb (n 16), para 49.

356

Attorney General v. Bank Leumi, PM 5763(1) 481 (2004), see Israel Report.

357

[2009] UKSC 6, Lady Hale, para 93.

358

Policymakers certainly have to be aware of the cultural differences affecting human judgment and decision making and adjust their regulatory interventions accordingly, see Zamir and Teichman (2018), pp. 124–127.

359

See the detailed report prepared for the UK market: Digital Comparison Tools: Consumer Research Final report, prepared by Kantar Public as part of the Competition and Markets Authority’s (CMA) market study in relation to digital comparison tools, 2017.

360

See on behaviourally informed lawmaking Zamir and Teichman (2018), pp. 162 ff. and 313 ff.; see on different regulatory means to spur competition on the market for long-term services and banking contracts Atamer (2017), pp. 644–657; or on the market for credit-card, mortgage and cell-phone contracts Bar-Gill (2012), pp. 51 ff.

361

Bubb and Pildes (2014), p. 1650.

362

http://www.boi.org.il/en/ConsumerInformation/ConsumerIssues/Pages/AmalotReform.aspx.

363

According to the information provided in the CJEU Judgment of 12 July 2012, Volksbank România, C-602/10, EU:C:2012:443, para 14 the Romanian legislator has limited fees which can be charged in relation to credit agreements: “Article 36 EGO No 50/2010 provides: ‘For the credit granted, the creditor may levy only a charge for the processing of the application, a credit administration charge or current account administration charge, compensation in the event of early repayment, insurance costs, penalties if appropriate, and a single charge for services provided upon request by consumers.”

364

See e.g. for a comparative study Reifner et al. (2010).

365

https://ec.europa.eu/digital-single-market/en/roaming-tariffs.

366

For example, in the USA, Section 149(a) of the Truth in Lending was changed with the Credit Card Accountability, Responsibility And Disclosure Act of 2009 as follows: “The amount of any penalty fee or charge that a card issuer may impose with respect to a credit card account under an open end consumer credit plan in connection with any omission with respect to, or violation of, the cardholder agreement, including any late payment fee, over-the-limit fee, or any other penalty fee or charge, shall be reasonable and proportional to such omission or violation.” On 15 June 2010 the Federal Reserve Board of the US has announced that it “[p]rohibits credit card issuers from charging a penalty fee of more than $25 for paying late or otherwise violating the account’s terms unless the consumer has engaged in repeated violations or the issuer can show that a higher fee represents a reasonable proportion of the costs it incurs as a result of violations. Prohibits credit card issuers from charging penalty fees that exceed the dollar amount associated with the consumer’s violation. For example, card issuers will no longer be permitted to charge a $39 fee when a consumer is late making a $20 minimum payment. Instead, the fee cannot exceed $20. Bans “inactivity” fees, such as fees based on the consumer’s failure to use the account to make new purchases. Prevents issuers from charging multiple penalty fees based on a single late payment or other violation of the account terms. Requires issuers that have increased rates since January 1, 2009 to evaluate whether the reasons for the increase have changed and, if appropriate, to reduce the rate.”

367

Council Directive 87/102/EEC (n 319).

368

(n 320).

369

Directive 2014/92/EU (n 33) for example obliges EU Member States in Article 7 to “[…] ensure that consumers have access, free of charge, to at least one website comparing fees charged by payment service providers for at least the services included in the final list referred to in Article 3(5) at national level. Comparison websites may be operated either by a private operator or by a public authority”.

370

See n 5. Parallel to the APR regulation in consumer credits, Article 23 Regulation (EC) N 1008/2008 for example includes a special provision to countervail intransparent price information via price-partitioning: “The final price to be paid shall at all times be indicated and shall include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which are unavoidable and foreseeable at the time of publication.”

371

See n 4.

372

According to Article 5 Directive 2014/92/EU (n 33), payment service providers have to inform consumers at least annually and free of charge with a statement of all fees incurred in that year.

373

See for such a suggestion: Provisional Decision on Remedies regarding the Retail Banking Market Investigation announced by the UK Competition & Markets Authority on 17 May 2016, pp. 175 ff.

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Titel: Control of Price Related Terms in Standard Form Contracts: General Report
verfasst von: Yeşim M. Atamer
Pascal Pichonnaz
Verlag: Springer International Publishing
Buch: Control of Price Related Terms in Standard Form Contracts
Print ISBN: 978-3-030-23056-2

Electronic ISBN: 978-3-030-23057-9

Copyright-Jahr: 2020
DOI: https://doi.org/10.1007/978-3-030-23057-9_1

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