The Commencement of Prescription (and what the Consumer’s Awareness of the Unfairness is) within the Unfair Contract Terms Directive

Abstract

Abstract Directive 93/13/ECC does not regulate prescription periods. However, some parameters can be drawn from the effectiveness principle that national legislation must consider in order to comply with Directive 93/13. This paper argues that the commencement of prescription for restitutionary claims following the unfairness of a term within the Directive 93/13 is determined with a reasonable discoverability criterion concerning the unfairness of the term. A consumer is able to discover the unfairness from the moment when a litigation context concerning the term in question arises. The commencement of prescription cannot be postponed until a court of last resort has decided over the issue on the unfairness.182