Summary:
The importance of the principle of transparency of standard contract terms (SCTs) for the practice of law and the fact that the issue is topical right now is demonstrated by the significant number of court rulings invoking this principle over the last two decades, including several rulings of the Greek Supreme Court on Civil and Criminal Law Matters (Areios Pagos). In spite of its unquestionable practical importance, the principle of transparency does not appear to have been subjected to sufficient consideration by legal theory in our country. The object of the present study is a contribution in that direction, by examining the principle of transparency of SCTs as an institution of the existing legal framework, as well as the recording, systematization and evaluation of the conclusions reached in Greek case law and legal theory. In this framework, the focal point of this study shall be the concept of the principle of transparency, the factors which led to its creation, its basis in the law, its particular application preconditions, its scope, its legal consequences, its boundaries under the Constitution, and, finally, its place in the system of private law, by examining on the one hand its legal nature and on the other hand the distinction of transparency control from other categories of control of the SCTs.
The starting point of this study is the examination of the primary problem which the use of SCTs poses in the Law, namely the preservation of the social benefit that SCTs offer, but in parallel with the mitigation of the negative consequences that the use of the SCTs may have for the consumer. The principle of transparency should also be examined in the light of this problem. Thereafter, this study examines the letter of the provisions of Law 2251/1994 on which the transparency control of SCTs is based and which also form the basis of the question, to what extent the use of the now prevailing terminology “principle of transparency” to denote the particular legal institution is successful. Afterwards, the principle of transparency is examined in the framework of its historical evolution, progressively in the German, the European Community and the Greek legal order. Moreover, the principle of transparency is examined in the framework of the subsystems in which it is included, namely the subsystem of the Law of SCTs, the subsystem of Consumer Protection Law, the subsystem of the Law of Obligations and the subsystem of Market Law, as well as studied in the framework of the orders of the Constitution and the Law of the European Union. Next, the principle of transparency is studied in the light of its ratio, with emphasis on its operation as a tool of information and self-protection for the consumer, but also self-commitment of the user of the SCTs. In the same framework, the principle of transparency is examined in the light of the Economic Analysis of Law. Following that, the various aspects of the principle of transparency are examined, with particular emphasis being placed on the findings of case law. In particular, the requirement of clear and understandable phrasing of the terms, the requirement of defined and definable content and the requirement of foreseeability of the terms are examined, which are the principles to which the principle of transparency is usually analysed in Greek case law and Greek legal theory. In addition, other suggested aspects of the principle of transparency of SCTs are examined and the principle of transparency is illuminated by way of the examination of its application in particular cases. The next item of examination is the principle of transparency as a tool for the control of the main object of the contract (by way of exception to the in principle non controllable character of the relationship between performance and counterperformance), as well as the examination of special matters which arise from the review of the principle of transparency. Finally, a summary of the findings of the review of the principle of transparency as an institution of positive law is set out, together with proposals de lege ferenda to which the study of the principle of transparency leads.
