# C_2023071EN.01001001.xml

| 27.2.2023 | EN | Official Journal of the European Union | C 71/10 |
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27.2.2023

EN

Official Journal of the European Union

C 71/10

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Judgment of the Court (Fourth Chamber) of 12 January 2023 (request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas — Lithuania) — D.V. v M.A.

(Case C-395/21) (1)

(Reference for a preliminary ruling - Unfair terms in consumer contracts - Directive 93/13/EEC - Contract for the provision of legal services concluded between a lawyer and a consumer - Article 4(2) - Assessment of the unfairness of contractual terms - Exclusion of terms relating to the main subject matter of the contract - Term providing for the payment of lawyers’ fees on the basis of an hourly rate - Article 6(1) - Powers of the national court when dealing with a term considered to be ‘unfair’)

(2023/C 71/11)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Applicant: D.V.

Defendant: M.A.

Operative part of the judgment

| 1. | Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011,
  must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the cost of the services provided on the basis of an hourly rate, is covered by that provision. |
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1.

Article 4(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011,

must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the cost of the services provided on the basis of an hourly rate, is covered by that provision.

| 2. | Article 4(2) of Directive 93/13, as amended by Directive 2011/83,
  must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer which sets the price of those services on the basis of an hourly rate, without the consumer being provided, before the conclusion of the contract, with information that enables him or her to take a prudent decision in full knowledge of the economic consequences of concluding that contract, does not satisfy the requirement of being drafted in plain intelligible language, within the meaning of that provision. |
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2.

Article 4(2) of Directive 93/13, as amended by Directive 2011/83,

must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer which sets the price of those services on the basis of an hourly rate, without the consumer being provided, before the conclusion of the contract, with information that enables him or her to take a prudent decision in full knowledge of the economic consequences of concluding that contract, does not satisfy the requirement of being drafted in plain intelligible language, within the meaning of that provision.

| 3. | Article 3(1) of Directive 93/13, as amended by Directive 2011/83,
  must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the price of those services on the basis of an hourly rate and therefore falls within the main subject matter of that contract, is not to be considered unfair simply on the ground that it does not satisfy the requirement of transparency laid down in Article 4(2) of that directive, as amended, unless the Member State whose national law applies to the contract in question has, in accordance with Article 8 of that directive, as amended, expressly provided for classification as an unfair term simply on that ground. |
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3.

Article 3(1) of Directive 93/13, as amended by Directive 2011/83,

must be interpreted as meaning that a term in a contract for the provision of legal services concluded between a lawyer and a consumer, which sets the price of those services on the basis of an hourly rate and therefore falls within the main subject matter of that contract, is not to be considered unfair simply on the ground that it does not satisfy the requirement of transparency laid down in Article 4(2) of that directive, as amended, unless the Member State whose national law applies to the contract in question has, in accordance with Article 8 of that directive, as amended, expressly provided for classification as an unfair term simply on that ground.

| 4. | Article 6(1) and Article 7(1) of Directive 93/13, as amended by Directive 2011/83,
  must be interpreted as not precluding the national court, where a contract for the provision of legal services concluded between a lawyer and a consumer is not capable of continuing in existence after a term, found to be unfair, which sets the price of the services on the basis of an hourly rate has been removed and those services have already been provided, from restoring the situation in which the consumer would have been in the absence of that term, even if, as a result, the seller or supplier does not receive any remuneration for the services provided. If the invalidity of the contract in its entirety would expose the consumer to particularly unfavourable consequences, which it is for the referring court to ascertain, those provisions do not preclude the national court from remedying the invalidity of that term by replacing it with a supplementary provision of national law or a provision of national law applied by mutual agreement of the parties to that contract. On the other hand, those provisions preclude the national court from replacing the unfair term that has been annulled with a judicial assessment of the level of remuneration due for those services. |
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4.

Article 6(1) and Article 7(1) of Directive 93/13, as amended by Directive 2011/83,

must be interpreted as not precluding the national court, where a contract for the provision of legal services concluded between a lawyer and a consumer is not capable of continuing in existence after a term, found to be unfair, which sets the price of the services on the basis of an hourly rate has been removed and those services have already been provided, from restoring the situation in which the consumer would have been in the absence of that term, even if, as a result, the seller or supplier does not receive any remuneration for the services provided. If the invalidity of the contract in its entirety would expose the consumer to particularly unfavourable consequences, which it is for the referring court to ascertain, those provisions do not preclude the national court from remedying the invalidity of that term by replacing it with a supplementary provision of national law or a provision of national law applied by mutual agreement of the parties to that contract. On the other hand, those provisions preclude the national court from replacing the unfair term that has been annulled with a judicial assessment of the level of remuneration due for those services.

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(1)  OJ C 368, 13.9.2021.

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