Chapter 4 - The Development of the Law on Allgemeine Geschäftsbedingungen

Summary

Introduction

The German law on STCs has been recognised for its high quality. In accordance with the debate on multilevel governance, this should be reflected in German actors’ recognition of other actors’ initiatives and deliberation between these actors. Can the high quality of the German law on STCs also be attributed to the coexistence of actors? According to pluralist arguments, this is the case if the coexistence of actors is beneficial to responsiveness, if it has enabled mutual learning or resulted in regulatory competition or regulatory co-opetition.

The approach of this case study in answering the questions raised in the previous chapter is as follows. Paragraph 4.2. will consider the high quality of the German law on STCs. Subsequently, paragraphs 4.3–4.5 will analyse the use of codifications, blanket clauses and general principles respectively. Paragraph 4.6. will draw a conclusion on the use of national techniques. Paragraph 4.7. will consider the use of techniques in addition to or instead of currently used techniques. Paragraph 4.8. will end with a conclusion.

The law on Allgemeine Geschäftsbedingungen

Since 1976, the German legislator stipulated the law on STCs, outside the BGB, through Sonderprivatrecht, in the Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen (AGB-Gesetz, hereaft er: ‘AGBG’), established in 1976. The AGBG has been amended only slightly for the implementation of Directive 93/13, and it was incorporated in the BGB in the Schuldrechtsreform. The revision of the law on STCs was not considered during the Schuldrechtsreform, which took place under considerable time pressure that decreased the chances that the law on STCs would be critically reconsidered. The most controversial question seems to have been whether the AGBG should be incorporated in the BGB. Th us, the AGBG, and later articles 305–310 BGB, have provided a stable framework for the development of the law on STCs.

Although unpredictability and inconsistency may be difficult to avoid with the introduction of more judicial control through blanket clauses, the extent to which this was the case was limited, as preceding case law already evaluated STCs.