# C_2020045EN.01000801.xml

| 10.2.2020 | EN | Official Journal of the European Union | C 45/8 |
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10.2.2020

EN

Official Journal of the European Union

C 45/8

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Order of the Court (First Chamber) of 24 October 2019 (request for a preliminary ruling from the Curtea de Apel Bacău, Romania) — SC Topaz Development SRL v Constantin Juncu, Raisa Juncu

(Case C-211/17) (1)

(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Consumer protection - Directive 93/13/EEC - Unfair terms in consumer contracts - Promissory contract for sale and purchase drafted by the property developer and certified by a notary - Article 3(2) and Article 4(1) - Proof of the negotiated nature of the terms - Presumption - Consumer’s signature of the contract - Article 3(3) - Paragraph 1(d) to (f) and (i) of the Annex - Express forfeiture clause - Penalty clause - Unfairness - Articles 6 and 7 - Possibility for the national court to vary the term found to be unfair)

(2020/C 45/03)

Language of the case: Romanian

Referring court

Curtea de Apel Bacău

Parties to the main proceedings

Applicant: SC Topaz Development SRL

Defendants: Constantin Juncu, Raisa Juncu

Operative part of the order

| 1. | Article 3(2) and Article 4(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, in circumstances such as those in the main proceedings, the mere signing of a contract concluded by a consumer with a seller or supplier which provides that, by signing the contract, the consumer accepts all of the contractual terms drafted in advance by the seller or supplier, does not lead to a rebuttal of the presumption that such terms had not been individually negotiated. |
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1.

Article 3(2) and Article 4(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, in circumstances such as those in the main proceedings, the mere signing of a contract concluded by a consumer with a seller or supplier which provides that, by signing the contract, the consumer accepts all of the contractual terms drafted in advance by the seller or supplier, does not lead to a rebuttal of the presumption that such terms had not been individually negotiated.

| 2. | Article 3(3) of Directive 93/13, read in conjunction with the Annex thereto, must be interpreted as meaning that an express forfeiture clause and a penalty clause, such as those at issue in the main proceedings, contained in a contract concluded by a consumer with a seller or supplier that are exclusively in favour of, and were drafted in advance by, the seller or supplier, are liable to constitute unfair terms referred to in paragraph 1(d) to (f) of that Annex, which is a matter for the national court to determine. |
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2.

Article 3(3) of Directive 93/13, read in conjunction with the Annex thereto, must be interpreted as meaning that an express forfeiture clause and a penalty clause, such as those at issue in the main proceedings, contained in a contract concluded by a consumer with a seller or supplier that are exclusively in favour of, and were drafted in advance by, the seller or supplier, are liable to constitute unfair terms referred to in paragraph 1(d) to (f) of that Annex, which is a matter for the national court to determine.

| 3. | Article 6 of Directive 93/13 must be interpreted as meaning that, where an express forfeiture clause and a penalty clause contained in a promissory contract for sale and purchase concluded between a consumer and a seller or supplier are held to be unfair, the national court cannot remedy the invalidity of such unfair terms by substituting its own decision, unless the contract cannot continue to exist after those unfair terms are deleted and the cancellation of the contract in its entirety would expose the consumer to particularly detrimental consequences. |
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3.

Article 6 of Directive 93/13 must be interpreted as meaning that, where an express forfeiture clause and a penalty clause contained in a promissory contract for sale and purchase concluded between a consumer and a seller or supplier are held to be unfair, the national court cannot remedy the invalidity of such unfair terms by substituting its own decision, unless the contract cannot continue to exist after those unfair terms are deleted and the cancellation of the contract in its entirety would expose the consumer to particularly detrimental consequences.

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(1)  OJ C 249, 31.7.2017

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