# C_2012013EN.01000301.xml

| 14.1.2012 | EN | Official Journal of the European Union | C 13/3 |
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14.1.2012

EN

Official Journal of the European Union

C 13/3

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Reference for a preliminary ruling from the Gerechtshof Amsterdam (Netherlands) lodged on 23 September 2011 — D.F. Asbeek Brusse, K. De Man Garabito v Jahani BV

(Case C-488/11)

2012/C 13/06

Language of the case: Dutch

Referring court

Referring court

Gerechtshof Amsterdam

Parties to the main proceedings

Parties to the main proceedings

Applicants: Dirk Frederik Asbeek Brusse, Katarina De Man Garabito

Applicants:

Defendant: Jahani BV

Defendant:

Questions referred

Questions referred

| 1. | Should a person who lets residential premises on a commercial basis and who lets a residential property to an individual be deemed to be a seller or supplier within the meaning of the Directive? (1) Does a tenancy agreement between a person who lets residential premises on a commercial basis and a person who rents such premises on a non-commercial basis fall within the scope of the Directive? |
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1.

Should a person who lets residential premises on a commercial basis and who lets a residential property to an individual be deemed to be a seller or supplier within the meaning of the Directive? (1) Does a tenancy agreement between a person who lets residential premises on a commercial basis and a person who rents such premises on a non-commercial basis fall within the scope of the Directive?

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| 2. | Does the fact that Article 6 of the Directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy, mean that, in a dispute between individuals, the national transposition measures with regard to unfair contractual terms are a matter of public policy, so that the national court is competent and obliged, both in first-instance proceedings and in appeal proceedings, of its own motion (and thus also outside the ambit of the grounds of complaint), to assess a contractual term against the national transposition measures and to find that term to be void if it comes to the conclusion that the term is unfair? |
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2.

Does the fact that Article 6 of the Directive must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy, mean that, in a dispute between individuals, the national transposition measures with regard to unfair contractual terms are a matter of public policy, so that the national court is competent and obliged, both in first-instance proceedings and in appeal proceedings, of its own motion (and thus also outside the ambit of the grounds of complaint), to assess a contractual term against the national transposition measures and to find that term to be void if it comes to the conclusion that the term is unfair?

| 3. | Is it compatible with the practical effect of Community law that the national court does not refrain from applying a penalty clause which must be deemed to be an unfair contractual term within the meaning of the Directive, but, by the application of national legislation, merely mitigates the penalty, in a case where an individual has invoked the mitigation powers of the court, but not the voidability of the term concerned? |
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3.

Is it compatible with the practical effect of Community law that the national court does not refrain from applying a penalty clause which must be deemed to be an unfair contractual term within the meaning of the Directive, but, by the application of national legislation, merely mitigates the penalty, in a case where an individual has invoked the mitigation powers of the court, but not the voidability of the term concerned?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

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