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Unfair Contract Terms in Commercial Transactions: The Role of DCFR as a Source for Interpretation of the Late Payment Directive

Ten years have passed since the publication of the final outline edition of the Draft Common Frame of Reference (‘DCFR’) in February 2009. This highly ambitious academic text has undoubtedly fulfilled one of its main purposes, i.e. the promotion of knowledge of private law in the jurisdictions of the European Union, and it will remain an inevitable tool to European private law scholars for years to come. To a limited extent, it has also served its purpose of being a source of inspiration for solutions in the national private law of the EU Member States, being e.g. referred to in several decisions of the Swedish Supreme Court. Although the complete DCFR was not used for a “political” CFR, there is one reference to the DCFR in the EU legislation, and it is found in the Directive 2011/7/EU on Combating Late Payment in Commercial Transactions (‘Late Payment Directive’). The Art. 7 of the Late Payment Directive has established a special regime for unfair contract terms and practices relating to late payment in commercial transactions. This was not a major novelty as the previous Directive 2000/35/EC had also contained similar provisions. What was new was the pointing out to the DCFR in the Recital (28) of the Late Payment Directive in relation to the notion of unfair contract term and practice. There it is stated that for the purpose of prohibiting the abuse of freedom of contract to the disadvantage of creditor “and in accordance with the academic ‘Draft Common Frame of Reference’, any contractual term or practice which grossly deviates from good commercial practice and is contrary to good faith and fair dealing should be regarded as unfair to the creditor”. It is argued in the paper that the inclusion of the reference to DCFR in the Recital (28) has turned the academic, non-political DCFR into an obligatory source for interpretation of the ambiguities found in the Art. 7 of the Late Payment Directive. The DCFR model-rules on unfair contract terms are analysed, and it is discussed to what extent they might be used for filling the gaps in the unfair contract terms regime established by the Late Payment Directive. The transposition of Art. 7 of the Late Payment Directive into national laws of several Member States is also analysed. A special emphasis is put on to a peculiar case of Croatia, where the Late Payment Directive had directly influenced the rules of civil procedure relating to collective legal protection, but the right of creditors in commercial transactions to take collective action against unfair contract terms and practices is still not fully recognised.

unfair contract terms ; commercial transactions ; Late Payment Directive ; Draft Common Frame of Reference ; DCFR

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