[Preliminary remarks].

Abstract

The control of unfair contract terms in Germany is exercised by the judiciary since the beginning of the 20 th century. German courts intervened into the contractual relationship in order to examine whether the agreed terms comply to the 'gute Sitten' or 'guter Glaube'. The legitimation has been drawn from the particular character of the 'Allgemeine Geschäftsbedingungen', the standard business conditions. Standard terms are said to be pre-formulated and meant to be used in standard business transactions. The contracting partner may choose to conclude the contract on the basis of these standard business conditions or may stay away from concluding the contract. So what standard business conditions are doing is to restrict the freedom of the contracting partners to shape the contractual relations. The adoption of the Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen in 1977 could be based therefore on long available expertise in the judiciary and on a broad acceptance in the doctrine on the control of standard business conditions. The Act introduces the well known three-pronged approach to deal with unfair contract terms: the general clause based on 'good faith', the grey and the black list of forbidden clauses. The same harmony cannot be reported from the debate over the appropriate means of control. After a quite controversial debate the German Parliament decided to vote for leaving the control in the hands of the judiciary but facilitating access by granting consumer and trader association the right to ask for an injunction and in case the use of standard business conditions has been recommended for withdrawal of the recommendation. Since then two modes of control have to be clearly distinguished: the so-called 'Inzidentkontrolle', i.e. the control of unfair terms in individual litigation's and the so-called 'abstrakte Kontrolle', i.e. the control of unfair terms by way of a group action (Verbandsklage). The following report on the practical application of the directive 93/13/EEC is based on 2000 cards that we have prepared for the European data file on unfair terms-Clabus. 1 These 2000 entries concern with one single exception, decisions of German courts in consumer contracts, but also in business transactions. They cover decisions in individual as well as collective actions. The latter turned out to be quite successful in consumer litigations. The Verbraucherschutzverein receives subsidies of round about 2 Million German Marks by the Ministry of Economics in order to enforce the AGBG and the UWG. But also …