Introduction
Dutch consumer law protects the private individual who contracts with a professional party. That protection is partly of European origin and works through into Dutch law: unfair terms can be annulled, information and withdrawal rights give the consumer room, and collection costs and interest are subject to limits. Characteristically, the court applies part of that protection of its own motion.
Unfair terms and review of the court's own motion
Terms in general conditions that unreasonably disturb the balance between the parties to the consumer's detriment can be annulled as unfair (Article 6:233 of the Dutch Civil Code, DCC, in the light of the European Unfair Terms Directive 93/13). The court must review such terms of its own motion, even where the consumer does not invoke them. The Supreme Court worked out that duty in Heesakkers/Voets: the appeal court too is required, within the bounds of the dispute, to examine whether a term is unfair and to annul an unfair term, if necessary after adjourning the case for that purpose and hearing the parties (Supreme Court 13 September 2013, ECLI:NL:HR:2013:691). This makes the review of penalty, collection and renewal clauses a recurring point of contention.
Information and withdrawal rights
For distance contracts and contracts concluded away from business premises, pre-contractual information duties and, in principle, a right of withdrawal apply (Article 6:230m et seq. DCC). If the consumer is not correctly informed about the right of withdrawal, the fourteen-day withdrawal period is extended by operation of law. For service providers there is the additional question of what must be disclosed in advance about price and conditions. An hourly rate without any indication of the total costs is not transparent, but far from always leads to annulment; that two-step test is covered on the page on the fee clause of lawyers and other service providers.
Collection costs and interest
Out-of-court collection costs against a consumer are capped by law and, as a rule, require a correct reminder with a payment period first, the fourteen-day letter (Article 6:96 DCC). A collection-costs clause that departs from this to the consumer's detriment can be annulled. Contractual interest is also tested for reasonableness. The concrete requirements for that reminder are addressed on the page on consumer debt collection.
What decides the outcome
The outcome is bound up with the classification as a consumer, the content of the conditions used, and compliance with the formal information and reminder requirements. Because the court reviews of its own motion, a claim by the professional party regularly fails on a term that does not pass muster.