Law, Terms of Service, commercial practices: which one really prevails?

To find your way through the debate on players' rights, you first have to distinguish a few notions that are often confused. They explain why a contract clause cannot do everything.

The basic vocabulary

• The law: the rules adopted by the legislator. They apply to everyone, citizens and companies alike.
• The application of the law: the way it is actually enforced. A law can exist yet be little enforced, for lack of complaints or checks.
• Applicability: not all rules apply everywhere. A European directive, for example, must be transposed into national law to produce its full effects, unlike a regulation, which is directly applicable.
• The CGU: the conditions set unilaterally by a company. They are contracts, but contracts subject to the law.

The hierarchy of norms

This is the essential point: a contract cannot override mandatory rules. A CGU that claims to deprive you of a right guaranteed by law (right of withdrawal, warranty of conformity, protection against unfair clauses) is, on that point, without effect. In European consumer law, these protections are a matter of public policy: they cannot validly be waived, even by "accepting".

"It is written in the contract" has never meant "it is legal". A contract yields to the law, not the other way around.

Why publishers write these clauses anyway

Because they work as long as no one challenges them. An unfair clause stays in the contract and discourages most users, until a judge, an association or an authority strikes it down. Hence the importance of knowing your rights.

See: unfair clauses · your consumer rights.

Official references

• Directive 93/13/EEC, unfair contract terms (EUR-Lex)
• Directive (EU) 2019/770, digital content and services (EUR-Lex)
• Directive 2011/83/EU, consumer rights (EUR-Lex)