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Part III Conclusions, 21 Towards an Unfair Terms Regulation

Danny Busch, Matthias Lehmann

From: Unfair Terms in Banking and Financial Contracts

Edited By: Danny Busch, Matthias Lehmann

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 23 July 2024

Banker-customer contract — Capital markets — Financial regulation

This chapter draws conclusions from the preceding analysis. In light of the significant divergences between national legal system in the administration of unfair terms control, this chapter suggests to replace the Unfair Terms Directive (UTD) with a Uniform Terms Regulation (UTR). All of the Regulation’s rules shall be directly applicable in the EU, thus avoiding any need for implementation by the Member States. In view of the chapter, such an instrument should cover not only consumer contracts, but also between business-to-business (B2B) contracts, at least when small and medium-sized enterprises (SMEs) are involved. The chapter opines that the UTR should provide clear definitions of key terms, such as ‘unfair’, ‘main performance’, or ‘price and remuneration’. It should include a binding Annex with a list of terms deemed to be unfair. The UTR should also set out the transparency test, clarifying its relation to the contra proferentem rule and the consequences of a lack of transparency. Furthermore, the UTR should include rules on the consequences of invalid terms, on limitation periods, and on procedural remedies. This chapter believes that the UTR will be instrumental for achieving the triple goals of consumer protection, the establishment of the Internal Market, and a competitive level playing field in the Union.

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