At the end of September, the CJEU delivered a ruling stating that where the wording of a provision in a consumer agreement template is equivalent to that of a clause listed as an abusive clause in the register of abusive clauses, this is by itself grounds for invalidation of that provision. This argument, which incidentally has caused some controversy, is no small matter for traders that enter into agreements with consumers. Since the beginning of 2023, the President of the Office of Competition and Consumer Protection (UOKiK) has been using AI to perform searches for abusive clauses. The AI tool used by UOKiK has learnt to red-flag contractual clauses, using the information in the register of abusive clauses and other sources.
This AI tool is an aid used by case handlers to search for and provisionally red-flag abusive clauses in agreement templates and terms of service used in consumer transactions. The tool employs a crawler, which is a bot that searches the Internet according to certain parameters. This means that UOKiK is moving away from its principally reactive approach – responding to reports or complaints from consumers – and will be proactive, using AI to search for clauses that raise concern. Meanwhile, the tool will not make decisions regarding evaluation of the clause in question, and this will be left to officials. What implications does this have for traders?
While a significant increase in the number of abusive clause cases has not been observed, cases of this kind might however only now be pending. Moreover, UOKiK now has a tool that has made its operations considerably more effective. In addition, the CJEU ruling can be expected to induce officials to take a more mechanical approach when evaluating clauses flagged by the AI tool as being worded in a manner equivalent to the clauses in the register, while until recently, a clause was evaluated with greater focus on the context of the agreement as a whole.
Due to the above, it is advisable to review the agreements and terms of service used in consumer transactions before the AI tool does so.
Author: Katarzyna Menszig-Wiese LL.M., PhD, Attorney-at-law, Managing Associate