Recognising the limits of transparency in EU consumer law

Basic arguments. This chapter deals with the issue of transparency operating as a legitimising factor, notwithstanding some other feature of a term or practice that might be viewed as unfair. First, it is suggested that, apart from being of general practical and theoretical importance, this is a particularly important question for a number of reasons related to the future development of EU and domestic consumer law. Partly, this is because of the sheer scale of harmonisation that now exists. With such large areas of the law harmonised around European standards, it is important to ensure that national courts and governments understand the level of protection that is required as a minimum under these standards. However, the increased use of ‘full harmonisation’ means that the upper level of protection allowed also becomes potentially very important. Clarity on key issues (such as when there is a legitimising role for transparency) is also important if genuine assimilation of laws is to be feasible. Second, there is an explanation as to what transparency actually is. This is followed by a discussion of an ‘assisted informed consent’ model (under which transparency is viewed as a legitimising factor). There is then a discussion of the more protective approach that does not view transparency as a legitimising factor. The thinking behind this approach may be that transparency does not actually produce more informed decisions, enable broader procedural fairness or generate market discipline; and that, in any case, it is appropriate to take an approach with a strong solidarity ethic that directly protects against unfair substantive consequences, matters of informed consent notwithstanding.