to act loyally, fairly and justly while formulating the no-show clause from, preconditions for taking a deposit and finally charging the no-show fee. When defining the content of the no-show clause and the preconditions for charging it, the provider of restaurant services must take into consideration the legitimate expectations of the customer/consumer booking the reservation which he or she would have expressed and protected had there been any negotiations regarding that particular contract term.36 The provider’s acting which is not in conformity with these requirements will be held as being contrary to the requirement of good faith 3/1 of the UCT Directive. Moreover, in order to be fair, the no-show clause must not contrary to the requirement of good faith cause a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.37 To assess whether a no-show clause causes a significant imbalance to the detriment of the consumer, one of the most important criteria is the amount of no-show fee which must be reasonable. It should not be excessive in relation to an average value of the service ordinary customers expect from that particular category of restaurants. The amount of the no-show fee should not be much above the amount the restaurant would have received from the customer had he or she come to the restaurant as agreed. Decisive may also be the reasons why the provider of the restaurant services, within his cancellation policy, has introduced the obligation of the payment of no-show fee. It is important to take into consideration the purpose and the function of the no-show clause in the contracts on the provision of restaurant services. The payment of the no-show fee should not result in the provider’s unjustified enrichment. Its purpose should only be to avoid the loss suffered by the restaurant because of a missed reservation. Similarly, the payment of a no-show fee should not be an excessive burden for the consumer. By paying a no-show fee, the consumer should not be exposed to a much greater expense than the one he or she would have had if having used the by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account.“ See Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts, OJ C 323, 27.9.2019, p.21, published at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX- :52019XC0927(01) (accessed: 8/10/2025). 36 A specific criterion for the assessment whether the trader (in this case, the provider of restaurant services) has acted in a fair and just way is also the assessment whether the trader could reasonably expect that the consumer would have accepted the contractual provision (e.g. the no-show clause) even if it had been individually negotiated. The necessary approach is needed based on the previous analysis of the market and on the consumers’ expectations when entering into such contracts. 37 Art. 3/1, UCT Directive. 126 TATJANA JOSIPOVIĆ
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