Diritto & Internet

Sole 24 Ore, focus on unfair terms in online contracts by the Studio Legale Finocchiaro

In the European scenario, e-commerce is regulated by Directive 2000/31/CE on electronic commerce which provides a bare minimum of rules applicable to contracts finalised on the Internet.

With regard to contracts finalised online by consumers, certain uniform rules are provided concerning unfair terms, the obligation to inform and termination. Specific procedural protection is also provided for.

When a consumer finalises a contract with a professional operator without having any say in the terms of the contract, (for example in the case of those pre prepared contracts on Internet websites, where the only choice the consumer has in order to conclude the purchase is to click a button), Directive 93/13/CEE, as modified by Directive 2011/83/EU, is applicable.

According to this Directive, Member States must provide that any unfair terms found in a contract are non-binding on the consumer. Any such terms are those which have not been negotiated between the consumer and the professional operator and cause a significant imbalance in the rights of the two parties. For example, this occurs in Italy, where the Consumer Code of Rights (D.lgs. 206/2005) provides that such clauses, also in those contracts finalised online, are totally null and void unless the professional operator is able to demonstrate that they have been individually negotiated with the consumer.

In B2C contracts finalised online, the professional operator has the added obligation of providing the consumer with information about the state and conditions of the contract. For example, Directive 2011/83/EU requires the professional operator to provide consumers with information about the main characteristics of the goods or services purchased in addition to the identity of the trader and the geographical location from which they operate.

As additional protection for consumers who purchase goods on the Internet, Directive 2011/83/EU provides the possibility for them to withdraw from the contract within fourteen days without giving reasons.

With regard to procedural protection, Regulation 1215/2012/EU states that the court competent to rule on legal disputes concerning B2C contracts may differ depending on whether the legal action is brought by the consumer or by the professional operator. In the case of legal action brought by the consumer, they may choose whether to start the proceeding before the court of the place in which they are domiciled or, alternatively, to start it before the court of the Member State in which the other party is domiciled. On the contrary, if it is the professional operator who brings the legal action, they will only be able to start the proceeding before the court of the Member State in whose territory the consumer is domiciled.

 
 

Add comment

Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi