# C_2022037EN.01001201.xml

| 24.1.2022 | EN | Official Journal of the European Union | C 37/12 |
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24.1.2022

EN

Official Journal of the European Union

C 37/12

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 8 October 2021 — VB v GUPFINGER Einrichtungsstudio GmbH

(Case C-625/21)

(2022/C 37/17)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant on a point of law (original defendant at first instance): VB

Respondent in the appeal on a point of law (original applicant at first instance): GUPFINGER Einrichtungsstudio GmbH

Questions referred

| 1. | Are Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (‘the Unfair Contract Terms Directive’) (1) to be interpreted as meaning that, in the examination of a trader’s contractual claim for compensation brought against a consumer based on the consumer’s unjustified withdrawal from the contract, the application of supplementary national law is precluded if the trader’s general terms and conditions (‘the GTCs’) contain an unfair term which, in addition to the provisions of supplementary national law, grants the trader an optional right to flat-rate compensation against a consumer who has acted in breach of contract?

  If Question 1 is answered in the affirmative: |
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1.

Are Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (‘the Unfair Contract Terms Directive’) (1) to be interpreted as meaning that, in the examination of a trader’s contractual claim for compensation brought against a consumer based on the consumer’s unjustified withdrawal from the contract, the application of supplementary national law is precluded if the trader’s general terms and conditions (‘the GTCs’) contain an unfair term which, in addition to the provisions of supplementary national law, grants the trader an optional right to flat-rate compensation against a consumer who has acted in breach of contract?

If Question 1 is answered in the affirmative:

| 2. | Is such an application of supplementary national law also precluded in the cases where the trader does not base its claim for compensation against the consumer on that term?

  If Questions 1 and 2 are answered in the affirmative: |
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2.

Is such an application of supplementary national law also precluded in the cases where the trader does not base its claim for compensation against the consumer on that term?

If Questions 1 and 2 are answered in the affirmative:

| 3. | Is it contrary to the abovementioned provisions of EU law that, in the case of a term containing several provisions (for example, alternative sanctions in the event of unjustified withdrawal from the contract), those parts of the term which, in any event, are consistent with the supplementary national law and are not to be regarded as unfair continue to exist as part of the contract? |
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3.

Is it contrary to the abovementioned provisions of EU law that, in the case of a term containing several provisions (for example, alternative sanctions in the event of unjustified withdrawal from the contract), those parts of the term which, in any event, are consistent with the supplementary national law and are not to be regarded as unfair continue to exist as part of the contract?

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(1)  OJ 1993 L 95, p. 29.

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