General Clauses in European Private Law and 'Stricter' National Standards: The Unfair Terms Directive

Abstract

This article deals with the tension between general clauses in European Private Law and the minimum provision which allows member states to adopt or retain stricter national law. Several private law directives contain general clauses, such as the standard of 'good faith' in the Unfair Terms Directive, which introduce a very broadly defined common standard into the private law of the member States. Further examples are the 'likelihood of confusion' in the Trademark Directive and the Community Trademark Regulation, the 'conformity with the contract' under the Consumer Goods Directive or the definition of misleading advertising in the Directive on Misleading Advertising. The author argues that it is up to the Court of Justice to give a common, european interpretation of such general clauses and to provide the national courts with the respective guidance. The freedom of the member states to adopt or retain stricter national law, does not mean that the national courts are free to develop and apply a different standard from the Court of Justice — even if this leads to 'stricter' results. As a precedent in favour of this approach, the author cites the Nissan case of 1992, where the Court held that a certain slogan could not be qualified as misleading advertising under the directive, even though the referring national court proposed to treat it as such and advocated a stricter solution.