The use of unfair contractual terms as an unfair commercial practice

Abstract The purpose of the present article is to propose a coordination between the provisions of directive 93/13/EEC (the Unfair Terms Directive, ‘UTD’) and those of the ‘framework’ directive 2005/29/EC (the Unfair Commercial Practices Directive ‘UCPD’), and in particular to assess whether the ‘use of unfair terms’ as meant by the UTD entails and shall be treated by the Member States as an ‘unfair commercial practice’. It is herein argued that the use of unfair terms (as understood by the UTD) will normally entail the constitutive elements of an unfair business-to-consumer commercial practice (as specified by the UCPD), namely a ‘misleading action’, since it will usually amount to the supply of false information or be capable of misleading the average consumer during the performance of the contract as to the parties' rights and obligations arising under the contract, in particular as to rights and obligations literally provided by terms which are legally non-binding on the consum...