Private Standards of Fairness in European Contract Law

Abstract

The Unfair Terms in Consumer Contracts Directive contains a general clause according to which ‘a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’ (Article 3(1)). The open-textured nature of this clause requires further guidance as to what constitutes a significant imbalance contravening the principle of good faith. The question is whether self- and co-regulation of B2C contracts give rise to such guidance. This paper ascertains to what extent private or mixed standards are taken into consideration in the assessment of contract terms by civil judges. It depicts how private regulation flows into the judicial interpretation of the open fairness norm, especially in France (recommendations of the Commission des clauses abusives) and in the Netherlands (GTC agreed upon by both trade and consumer organisations). By taking this regulation into account while assessing the fairness of a contract term on the basis of a legal norm, civil courts confer legitimacy on it. It appears that private standards are deemed fair or viewed as a benchmark of fairness in view of their co-regulatory nature. Co-regulation however does not always vouch for in concreto and even in abstracto fair standards. It should therefore not exempt private standards from being put to a broader fairness review.