The (unclear) relationship between a personalised price term and the unfair contractual terms directive

• Autor(a) principal: Henriques, Adriana Alves
• Data de Publicação: 2022
• Tipo de documento: Dissertação
• Idioma: eng
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/153194
• topic: Personalização de preço; Cláusula de preço personalizado; Transparência; Direito do consumo europeu; Deveres de informação pré-contratuais; Direito

Given the persistent advance of technology and data science, it is predictable that the practice of price personalisation will become more common and sophisticated. It is therefore up to the Law to intervene and regulate this new commercial practice in order to ensure consumer protection. In this context, transparency requirements can play a key role. In this sense, the European legislator implemented a new pre-contractual information duty, which will be included in the Consumer Rights Directive - new Article 6(ea). Under this new paragraph, the consumer has to be informed if the price was personalised on the basis of automated decision-making. Even though this requirement is very welcome, it raises several questions. Thus, part of this work will be dedicated to its detailed analysis, namely its scope, form, content and level of detail, as well as its importance for the consumer’s life. In addition, we will also offer the interpretation that we consider the most adequate. Since this new transparency requirement is not applied in an isolated manner, it is important to take into consideration its relationship with the remaining legal instruments, namely the Directive on unfair terms in consumer contracts (UCTD). Although it contains already a transparency requirement, we believe that both can be interpreted in a cohesive way. Under the UCTD, it is clear that if a personalised price term is not transparent, it will be subject to the unfairness test of Article 3, requiring, to that end, some effort and adaptation by national courts. On the contrary, if the term is transparent, we argue that, based on a teleological interpretation, it is still possible to submit the personalised price term to this assessment. In the final part of our work, we decided to address the consequences of the declaration of the unfair nature of a personalised price term. In the light of the UCTD, this term will have to be eliminated which, in turn, will lead, in our view, to the nullity of the entire contract. Exceptionally, if such an annulment gives rise to some particularly unfavourable consequences for the consumer, the performance of the contract should continue, with the replacement of the personalised price term - either by a new price negotiated by the parties or by a supplementary rule of national law (at the limit, in the absence of such a rule, by the nonpersonalised price).