FREIBURGER KOMMUNALBAUTEN GMBH BAUGESELLSCHAFT & Co. KG AND LUDGER HOFSETTER, ULRIKE HOFSETTER

Transcription

1 OCÉANO GRUPO EDITORIAL AND SALVAT EDITORES JUDGMENT OF THE COURT 27 June 2000 In Joined Cases C-240/98 to C-244/98, THE COURT, in answer to the questions referred to it by the Juzgado de Primera Instancia No 35 de Barcelona by orders of 31 March and 1 April 1998, hereby rules: 1. The protection provided for consumers by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. 2. The national court is obliged, when it applies national law provisions predating or postdating the said Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive. The requirement for an interpretation in conformity with the Directive requires the national court, in particular, to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term. CODIFIS SA AND JEAN-LOUIS FREDOUT JUDGMENT OF THE COURT (Fifth Chamber) 21 November 2002 In Case C-473/00, THE COURT (Fifth Chamber), in answer to the question referred to it by the Tribunal d'instance de Vienne by judgment of 15 December 2000, rectified by judgment of 26 January 2001, hereby rules: Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts precludes a national provision which, in proceedings brought by a seller or supplier against a consumer on the basis of a contract concluded between them, prohibits the national court, on expiry of a limitation period, from finding, of its own motion or following a plea raised by the consumer, that a term of the contract is unfair. FREIBURGER KOMMUNALBAUTEN GMBH BAUGESELLSCHAFT & Co. KG AND LUDGER HOFSETTER, ULRIKE HOFSETTER JUDGMENT OF THE COURT (Fifth Chamber) 1 April 2004 In Case C-237/02, THE COURT (Fifth Chamber), in answer to the question referred to it by the Bundesgerichtshof by order of 2 May 2002, hereby rules: It is for the national court to decide whether a contractual term such as that at issue in the main proceedings satisfies the requirements for it to be regarded as unfair under Article 3(1) of Council Directive 93/13/EEC of

2 5 April 1993 on unfair terms in consumer contracts. PANNON GSM ZRT V ERZEBET SUSTIKNE GYORFI JUDGMENT OF THE COURT (Fourth Chamber) 4 June 2009 In Case C-243/08 the Court (Fourth Chamber) in answer to the questions referred to it by Budaörsi Városi Bíróság (Hungary), made by decision of 22 May 2008, received at the Court on 2 June 2008, hereby rules: 1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand. 2. The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction. 3. It is for the national court to determine whether a contractual term, such as that which is the subjectmatter of the dispute in the main proceedings, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13. In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business may be considered to be unfair POHTOVOST SRO V IVETA KORCKOVSKA ORDER OF THE COURT (Eighth Chamber) 16 November 2010 (*) In Case C 76/10, the Court (Eighth Chamber) hereby rules: 1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts requires a national court, hearing an application for enforcement of a final arbitral award issued by default and without the participation of the consumer, of its own motion, where the necessary information on the legal and factual state of affairs is available to it for this purpose, to consider the fairness of the penalty contained in a credit agreement concluded by a creditor with a consumer, that penalty having been applied in that award, where, according to national procedural rules, such an assessment may be conducted in similar proceedings under national law. 2. It is for the national court concerned to determine whether a term in a credit agreement such as that at issue in the main proceedings providing, according to the findings of that court, for the consumer to pay a disproportionately high sum in compensation, must, in the light of all the circumstances attending the conclusion of the contract, be regarded as unfair within the meaning of Articles 3 and 4 of Directive 93/13. If

3 that is the case, it is for that court to establish all the consequences thereby arising under national law, in order to ensure that the consumer is not bound by that term. 3. In circumstances such as those in the main proceedings, the failure to mention the annual percentage rate in a consumer credit contract, the mention of the annual percentage rate being essential information in the context of Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, as amended by Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998, may be a decisive factor in the assessment by a national court of whether a term of a consumer credit agreement concerning the cost of that credit in which no such mention is made is written in plain, intelligible language within the meaning of Article 4 of Directive 93/13. If that is not the case, that court has the power to assess, of its own motion, whether, in the light of all the circumstances attending the conclusion of that contract, the failure to mention the annual percentage rate in the term of that contract concerning the cost of that credit is likely to confer on that term an unfair nature within the meaning of Articles 3 and 4 of Directive 93/13. However, notwithstanding the power which is given to assess that contract in the light of Directive 93/13, Directive 87/102 is to be interpreted as allowing national courts to apply of their own motion the provisions transposing Article 4 of the latter directive into national law and as providing that the failure to mention the annual percentage rate in a consumer credit contract means that the credit granted is deemed to be interestfree and free of charge. BANCO ESPANOL DE CREDITO SA V JOAQUIN CALDERON CAMINO JUDGMENT OF THE COURT (First Chamber) 14 June 2012 In Case C 618/10, the Court (First Chamber) hereby rules: 1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term relating to interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection. 2. Article 6(1) of Directive 93/13 must be interpreted as precluding legislation of a Member State, such as Article 83 of Royal Legislative Decree 1/2007 approving the consolidated version of the General Law for the protection of consumers and users and other supplementary laws (Real Decreto Legislativo 1/2007 por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) of 16 November 2007, which allows a national court, in the case where it finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, to modify that contract by revising the content of that term. MOHAMED AZIZ V CAIZA D ESTALVIS DE CATALUNYA, TERRAGONA I MANRESA JUDGMENT OF THE COURT (First Chamber) 14 March 2013

4 In Case C 415/11, The Court (First Chamber) hereby rules: 1. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which, while not providing in mortgage enforcement proceedings for grounds of objection based on the unfairness of a contractual term on which the right to seek enforcement is based, does not allow the court before which declaratory proceedings have been brought, which does have jurisdiction to assess whether such a term is unfair, to grant interim relief, including, in particular, the staying of those enforcement proceedings, where the grant of such relief is necessary to guarantee the full effectiveness of its final decision. 2. Article 3(1) of Directive 93/13 must be interpreted as meaning that: the concept of significant imbalance to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out; in order to assess whether the imbalance arises contrary to the requirement of good faith, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations. Article 3(3) of Directive 93/13 must be interpreted as meaning that the annex to which that provision refers contains only an indicative and non-exhaustive list of terms which may be regarded as unfair. ARPAD KALSER, HAJNALKA KALSERNE RABAI V OTP JELZLOGBANK ZRT JUDGMENT OF THE COURT (Fourth Chamber) 30 April 2014 In Case C 26/13, the Court (Fourth Chamber) hereby rules: 1. Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that: the expression the main subject-matter of a contract covers a term, incorporated in a loan agreement denominated in foreign currency concluded between a seller or supplier and a consumer and not individually negotiated, such as that at issue in the main proceedings, pursuant to which the selling rate of exchange of that currency is applied for the purpose of calculating the repayment instalments for the loan, only in so far as it is found, which it is for the national court to ascertain having regard to the nature, general scheme and stipulations of the contract and its legal and factual context, that that term lays down an essential obligation of that agreement which, as such characterises it; such a term, in so far as it contains a pecuniary obligation for the consumer to pay, in repayment of instalments of the loan, the difference between the selling rate of exchange and the buying rate of exchange of the foreign currency, cannot be considered as remuneration the adequacy of which as consideration for a service supplied by the lender cannot be the subject of an examination as regards unfairness under Article 4(2) of Directive 93/ Article 4(2) of Directive 93/13 must be interpreted as meaning that, as regards a contractual term such

5 as that at issue in the main proceedings, the requirement that a contractual term must be drafted in plain intelligible language is to be understood as requiring not only that the relevant term should be grammatically intelligible to the consumer, but also that the contract should set out transparently the specific functioning of the mechanism of conversion for the foreign currency to which the relevant term refers and the relationship between that mechanism and that provided for by other contractual terms relating to the advance of the loan, so that that consumer is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it. 3. Article 6(1) of Directive 93/13 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which a contract concluded between a seller or supplier and a consumer cannot continue in existence after an unfair term has been deleted, that provision does not preclude a rule of national law enabling the national court to cure the invalidity of that term by substituting for it a supplementary provision of national law.