ERU, Alm.del - 2022-23 (2. samling) - Bilag 137: Orientering om regerings høringssvar og dertilhørende bilag og orienteringsnotat herom til Kommissionens offentlige høring ifm. fitness check af EU's forbrugerlovgivning på det digitale område, fra erhvervsministeren

Erhvervsudvalget 2022-23 (2. samling)
ERU Alm.del Bilag 137
Offentligt

Ministry of Justice

Annex 3

Date:

May 1, 2023

Recommendations regarding the Unfair Contract Terms Directive

The Danish Government has the following recommendations regarding the

Unfair Contract Terms Directive:

Recommendation 1: New services and industries

With the evolving development in contract terms and especially with the

rise of the digital economy and new services, the Danish Government en-

courages the Commission to look into whether the Unfair Contract Terms

Directive is fit for new services and industries. The Commission is espe-

cially encouraged to evaluate the current “grey list” in Annex 1 to the di-

rective to ensure that the list is fulfilling and fit for the digital age.

As an example, the gaming industry has evolved increasingly during the last

decade. Purchases of digital items or services with virtual in-app currencies

are one of the most important revenue streams for gaming businesses. Trad-

ers in the industry often stipulate in their terms and conditions that in-app

currencies are non-refundable.

The Danish Government therefore encourages the Commission to evaluate

whether the directive is fit for the digital age, and especially to examine

whether contractual terms in the gaming industry stipulating that in-app cur-

rencies are non-refundable should be regarded as unfair.

Recommendation

The Danish Government recommends the Commission to evaluate whether

the directive and Annex 1 is fit for the digital age, and especially to examine

whether contractual terms in the gaming industry stipulating that in-app cur-

rencies are non-refundable should be regarded as unfair.

Slotsholmsgade 10

DK - 1216 København K.

Phone +45 7226 8400

www.justitsministeriet.dk

[email protected]

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ERU, Alm.del - 2022-23 (2. samling) - Bilag 137: Orientering om regerings høringssvar og dertilhørende bilag og orienteringsnotat herom til Kommissionens offentlige høring ifm. fitness check af EU's forbrugerlovgivning på det digitale område, fra erhvervsministeren

Recommendation 2: A new

“black list”

Considering the cross-border nature of many digital services, the current le-

gal framework, where each Member State can create its own “black list” of

contract terms that are always considered as unfair without requiring a case-

by-case assessment, lacks transparency for businesses and consumers. Fur-

ther, as a consequence, the stipulations can be difficult to comply with for

traders as well as difficult to enforce for authorities. The Commission may

therefore examine whether such a “black list” should be introduced as an

Annex to the directive.

Recommendation

The Danish Government recommends the Commission to examine whether

a “black list” of contract

terms that are always considered as unfair without

requiring a case-by-case assessment should be introduced as an Annex to

the Unfair Contract Terms Directive.

Recommendation 3: Unilateral changes of contract terms

The directive and case law address when and how traders may make use of

unilateral changes of contract terms. However, the legal framework is un-

clear as to when traders may make use of unilateral changes to contracts.

The lack of clarity is to the detriment of both consumers and businesses and

may lead to fragmentation in Member States’ legal framework.

The Danish Government therefore encourages the Commission to ensure

clarity on the definition of valid reasons for unilateral changes to contracts.

Further, the Commission is encouraged to introduce a requirement for a fair

warning of such changes and a realistic access to termination.

Further, the Danish Government finds that it would be beneficial for con-

sumers if businesses were required to submit unilateral changes to contracts

to consumers on a durable medium. In this regard, it should be clear and

understandable for consumers what they are consenting to.

Recommendation

The Danish Government recommends the Commission to ensure clarity on

the definition of valid reasons for unilateral changes to contracts and to eval-

uate whether requirements for a fair warning of such changes and a realistic

access to termination should be introduced.

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Recommendation 4: Codification of case law

In addition to the recommendations above, the Danish Government notes

that it will strengthen the clarity of the directive if relevant case law from

the European Court of Justice is codified. The Danish Government therefore

encourages the Commission to evaluate whether relevant case law should

be codified.

Recommendation

The Danish Government recommends the Commission to evaluate whether

relevant case law can be codified with the aim of strengthening the legal

clarity of the directive.

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