secure a speedy protection for the consumer. Annex to the UCT Directive lays down, as a potentially unfair contract term, the provision of “permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract.”40 The circumstance that the contracted penalty clause is laid down only for non-performance of the consumer’s obligation regarding the reservation and not for non-performance of the service provider’s obligation arising from the reservation contract, also signals the existence of a major imbalance to the detriment of the consumer and the unfairness of the no-show clause. Finally, to assess the unfairness of the no-show clause, its transparency is also relevant.41 First of all, to be able to make an informed decision on the restaurant reservation, the consumer must be informed in advance of the content of all general contract terms. He or she must be informed in advance of the no-show clause and about the consequences if failing to arrive at the restaurant in due time.42 In the case of the contrary, it is possible that the no-show clause is considered as unfair. Accordingly, in Annex to the UCT Directive, a potentially unfair contractual provision is the provision of “irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract”.43 In addition, the no-show clause in itself must be drafted in plain, intelligible language.44 Due to an unclear and incomprehensible no-show clause, the customer/consumer, when speaking of being informed about his or her obligations under the reservation contract, may be in a more unfavourable position compared to the service provider. The no-show clause must be composed in such a way that the consumer learns about all its legal and economic effects and can foresee all the consequences of possible violation of the obligation under the reservation contract. It is not sufficient that the clause is formally and grammatically intelligible. It must be drafted in such a way that an average consumer becomes acquainted with all his or her rights and obligations 40 Point 1/d, Annex UCT Directive. 41 On transparency requirements in the context of the unfairness test, for more see Loos, M.B.M: Crystal Clear? The Transparency Requirement in Unfair Terms Legislation, European Review of Contract Law 4/2023, pp. 281–299; Schulte-Nölke, H.: o.c., pp. 320-324. 42 In that regard in Rec. 20, UCT Directive it is expressly stated that “whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favourable to the consumer should prevail.” 43 Point 1/I, Annex UCT Directive. 44 Art. 5, UCT Directive. 128 TATJANA JOSIPOVIĆ
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