Volume 18, Issue 1

Transparency counts amid the most typical and inherent elements of the current consumer protection toolbox in EU law. For a long time, the exact premises of this requirement have been understood in a standardized way, taking the concept of an average consumer as the benchmark. The case of 93/13/EEC Directive (UCTD) is particularly striking in this regard. The necessary connection between the average consumer and transparency comes almost without saying in both the CJEU case law, and in the scholarship provisions on the UCTD. However, Articles 4(2) and 5 of the UCTD merely refer to a consumer. The focus on the average consumer therefore reduces the scope of application suggested by the plain meaning of these provisions. The article takes a critical stance towards the communis opinio that there is a necessary connection between the average consumer and transparency in the UCTD. Relying on both legal and economic reasons, the paper supports a twofold claim: (1) The system of EU law requires, sometimes, to assess the transparency of a term from the perspective of vulnerable consumers. (2) This more demanding standard shall be used when the average consumers operating on the market do not offer herd protection to the vulnerable consumers. The article shows that the communis opinio rests on a faulty assumption, namely that vulnerable consumers are protected when core terms are transparent for the average consumer. The article shows that this is not the case under common circumstances. Demanding core terms to be transparent for the vulnerable consumer in those circumstances contributes to reaching a high level of consumer protection.

Compensating the plaintiff’s expectancy loss is the established remedy for breach of contract in common-law jurisdictions. Legal theory has examined losses and gains extending beyond lost expectancy, especially gain-based disgorgement as a remedy reflecting the restitution interest in contract law. The theory of efficient breach implies that restitution remedies inaccurately compensate loss, whereas the case in jurisprudence for gain-based disgorgement ignores efficiency all together in focussing on ‘wrongs’ and ‘just’ compensation. We consider legal developments in the UK and US to show (i) efficient breach and gain-based disgorgement can be reasonably reconciled; (ii) a full disgorgement remedy will be evaded because the defendant will deliver specific performance; (iii) careful recognition of the type of externalities affecting the plaintiff, defendant and third parties indicates when disgorgement is useful.

This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of June 2021 and the end of December 2021. Out of a total of 329 judgments decided in this period, 55 had a contract law dimension.