Judgment;Summary — ECLI:EU:C:2023:64
Date: 2023-02-02
Language of the case: Polish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-208/21–1 
Case C-208/21 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
23 March 2021 
Referring court: 
Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court for 
Warszawa-Wola, Warsaw, Poland) 
Date of the decision to refer: 
1 June 2020 
Applicant: 
K.D. 
Defendant: 
Towarzystwo Ubezpieczeń Ż S.A. 
  
Subject matter of the main proceedings 
Action for payment in connection with a plea alleging that a declaration of 
accession to a group assurance contract is invalid in the context of the use of an 
unfair commercial practice. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
2  
Subject matter and legal basis of the question referred 
The scope of the term ‘unfair commercial practice’ contained in [Directive] 
2005/29/EC; scope ratione personae of responsibility; right to apply for the 
annulment of a contract under national law; unclear standard contract in the 
context of Directive 93/13  
Questions referred 
‘Question 1: Must Article 3(1) of Directive 2005/29/EC, in conjunction with 
Article 2(d) thereof, be interpreted as concentrating the meaning of the term 
‘unfair commercial practice’ only around the circumstances relating to the 
conclusion of a contract and the presentation of the product to the consumer, or 
must the formulation, by the trader who is creator of the product, of the 
misleading standard contract which underlies the functioning of the sales offering 
prepared by another trader, and is therefore not directly related to the marketing of 
the product, also be understood as falling with the scope of the directive and thus 
the term ‘unfair commercial practice’? 
Question 2: If the first question is answered in the affirmative, must it be 
concluded that the trader responsible under Directive 2005/29/EC for the use of an 
unfair commercial practice is the trader responsible for formulating the misleading 
standard contract or the trader who, on the basis of that standard contract, presents 
the product to the consumer and is directly responsible for marketing the product, 
or must it be concluded that both traders bear responsibility under Directive 
2005/29/EC? 
Question 3: Does Article 3(2) of Directive 2005/29/EC preclude a rule of national 
law (interpretation of national law), which confers on the consumer the right to 
apply for annulment by a national court of a contract concluded with a trader, with 
mutual refund of payments, where the consumer’s declaration of intent to 
conclude the contract was made under the influence of the trader’s unfair 
commercial practice? 
Question 4: If the third question is answered in the affirmative, must it be held that 
the appropriate legal basis for assessing the action of a trader, consisting in the use 
of unintelligible and unclear standard contract in relation to a consumer, will be 
Directive 93/13, and consequently must the requirement that contractual terms be 
drafted in plain, intelligible language, laid down in Article 5 of Directive 93/13, be 
interpreted as meaning that in unit-linked assurance contracts concluded with 
consumers this requirement is met by a non-individually negotiated contractual 
term which does expressly define the scale of the investment risk during the term 
of the assurance contract and merely provides information about the possibility of 
TOWARZYSTWO UBEZPIECZEŃ Ż S.A. 
 
3 
the loss of part of the first premium paid and on-going premiums in the event of 
withdrawal from the assurance before the end of the liability period? 
Provisions of Community law relied on 
Articles 2, 3, 5, 11 and 11a of Directive 2005/29/EC of the European Parliament 
and of the Council of 11 May 2005 concerning unfair business-to-consumer 
commercial practices in the internal market and amending Council Directive 
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European 
Parliament and of the Council and Regulation (EC) No 2006/2004 of the 
European Parliament and of the Council (‘Unfair Commercial Practices 
Directive’) (‘Directive 2005/29/EC’) 
Articles 3 and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms 
in consumer contracts (‘Directive 93/13’) 
Provisions of national law relied on 
Articles 2, 4, 12 of the Ustawa o przeciwdziałaniu nieuczciwym praktykom 
rynkowym z dnia 23 sierpnia 2007 r. (Law of 23 August 2007 on combating 
unfair commercial practices) (‘the LCUCP’) 
Articles 6, 58, 84, 88, 361, 415, 805, and 808 of the Civil Code of 23 April 1964 
(‘the CC’) 
Succinct presentation of the facts of the case and proceedings 
1 By an application of 10 January 2018, the applicant, K. D., sought an order 
requiring the defendant, Towarzystwo Ubezpieczeń Ż, a public limited liability 
company established in W. (hereinafter also referred to as ‘TUŻ’), to pay an 
amount of PLN 40 225.43, plus statutory default interest from 7 May 2017 to the 
date of payment, and the costs of the proceedings.  
2 The applicant founded its claim on several bases, inter alia a plea alleging that the 
declaration of accession to the group endowment and life assurance contract with 
the unit-linked fund ‘L.’ (hereinafter also referred to as ‘the ULF L.’), concluded 
between TUŻ, a public limited company established in W. and the Bank Y., a 
public limited company established in W. (hereinafter also referred to as ‘Bank 
Y’), and also a plea alleging the defendant used an unfair and misleading 
commercial practice, both pleas being based on identical facts and the product 
description contained in the Terms and Conditions of Assurance L. and the 
Instrument of Incorporation of the Unit-Linked Fund ‘L.’ (‘the Fund’s Instrument 
of Incorporation’). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
4  
3 The dispute in question arose in connection with the applicant’s accession, as a 
consumer, to the group endowment and life assurance contract with the unit-
linked fund ‘L.’, concluded between TUŻ, a public limited company established 
in W., and the Bank Y., a public limited company established in W. 
4 TUŻ, a public limited company established in W., acted as the assurer in the 
contract. Bank Y., a public limited company established in W, acted as the 
policyholder therein. The applicant acted therein in its capacity as the assured 
person. The applicant had assurance cover from 10 January 2012. The agreed 
assurance period was 15 years. In connection with its accession to the contract, the 
applicant was required to pay an initial premium of PLN 20 250 and on-going 
monthly premiums of PLN 612. The applicant paid a total of PLN 58 806 into the 
assurer’s account by way of such premiums. Standard terms in the form of 
assurance terms and conditions, a table of fees and premium limits, and the fund’s 
instrument of incorporation apply to the contract. 
5 According to the Assurance Terms and Conditions, the table of fees and premium 
limits and the Fund’s Instrument of Incorporation, the objective of the assurance 
was to accumulate and invest the assured person’s monies using a dedicated unit-
linked fund. According to the instrument of incorporation, the unit-linked fund 
was created from the payment of premiums – initial and on-going – less 
administrative fees. The initial premium paid at the beginning of the contract 
amounted to 20% of the invested premium, that is to say the sum of all the 
premiums minus the fees which the applicant had to pay throughout the term of 
the contract. The premium invested under the contract amounted to 
PLN 101 250 – it was the product of the on-going premium less the administration 
fee and the number of months of duration of the assurance, plus the initial 
premium (that is to say PLN 612 minus the administration fee x 15 years x 
12 months + 20%). The objective of the fund was to: increase the value of the 
assets through growth in the value of the investment thereof in certificates issued 
by BV and the 100% protection of the amount corresponding to the premium 
invested, without the assurer guaranteeing that those objectives would be attained. 
6 At the end of the 15-year duration of the contract the applicant was to receive a 
life assurance benefit in the amount of the value of the account on the date of 
redemption, which was to be determined on the basis of the instrument of 
incorporation. Under Paragraph 4(5) of the Instrument of Incorporation, the value 
of the account on the date of redemption was to be calculated on the basis of the 
value of the certificates referred to in subparagraph 3. On the date on which the 
liability period ended, the payment from the certificate was to protect the nominal 
value corresponding to the invested premium (i.e. PLN 101 250) and achievement 
of the objective referred to in Paragraph 3(2) of the Instrument of Incorporation 
(i.e. the increase in the value of the ULF’s assets), with the proviso that the assurer 
did not guarantee achievement of the investment objective referred to in 
Paragraph 3(2) of the Fund’s Instrument of Incorporation. In addition, payment 
was to be made unless one of the following risks materialised: a credit risk of the 
issuer (understood as the possibility of permanent or temporary inability of the 
TOWARZYSTWO UBEZPIECZEŃ Ż S.A. 
 
5 
issuer to service the debt, including surrender of issued certificates); the risk of not 
making profits because the performance of the ULF is dependent on change in the 
value of the certificates and is not determined in advance; and the risk of losing 
part of the initial premium paid and on-going premiums less the management free 
in the event of withdrawal from the assurance before the end of the liability 
period. 
7 How the abovementioned index operates was not specified anywhere in the 
contract. Furthermore, that index could be replaced by a replacement index if the 
original index were terminated. The contract did not set out how the replacement 
index was to be calculated or specify the situation in which the original index 
could be terminated, or who was to take the decision in that regard. 
8 The applicant had the right to terminate the contract before the 15-year term 
expired. In that case, the assurer undertook to effect what is known as ‘total 
surrender’. The assurer then paid the assured person an amount equal to the value 
of the account, less a termination fee amounting 80% of the monies concerned, 
where the contract was terminated in the first, second or third year of its term. If 
the contract were terminated in subsequent years of its term, the termination fee 
was subject to a corresponding reduction, so that it amounted to 50% in the sixth 
year and 20% in the tenth. 
9 The termination fee was to be calculated and charged as a percentage, in 
accordance with the table of fees and premium limits, of the value of the 
redeemed units. The value of the account indicated the current number of units 
acquired to the unit account multiplied by the value of such a unit on a given date. 
The value of a unit was calculated by dividing the net asset value of the overall 
fund by the total number of units. How the net asset value of the unit-linked fund 
was to be calculated was set out in the instrument of incorporation, under which it 
was to be effected in accordance with a market value permitting a reliable 
reflection of their value whilst complying with the principle of prudence in 
valuation. However, the contract did not explain the rules under which units in the 
assurance fund were to be valued or the rules under which the net assets of the 
overall fund were to be valued. Nor were rules on the valuation of 
bonds/certificates in which the monies were to be invested set out. 
10 The first premium was converted into fund units in accordance with a conversion 
rate, strictly defined by the contract, for the value of the initial unit in the amount 
of PLN 200. In the subsequent operations on the account, that is to say after 
payment of the monthly on-going premiums had commenced, the conversion of 
the money into fund units and the conversion of the value of the total units entered 
in the assured person’s account (including the applicant’s) was effected in a 
manner unknown to the applicant. The Terms and Conditions of the Assurance 
and the Instrument of Incorporation of the Fund did not state why the value of the 
unit following the first acquisition dropped from PLN 200 to PLN 147.38 and in 
subsequent periods down to PLN 31.93. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
6  
11 The applicant acceded to the abovementioned assurance contract through Bank Y, 
a public limited company. 
12 The monies of the unit-linked assurance fund were invested in structured bonds 
issued by the investment bank BV. The value of the unit share, and thus the value 
of the assured person’s investment, determined the value of those assets (i.e. the 
structured bonds), and not the value of the underlying indexes. The structured 
bonds consisted of an option component and a debt component (bond or deposit). 
The market value of a structured bond is a component of the value of those two 
parts. The above information was not included in the Assurance Terms and 
Conditions or the Fund’s Instrument of Incorporation – the Terms and Conditions 
merely stated that the ULF monies would be invested in BV certificates.  
13 The Terms and Conditions and the Fund’s Instrument of Incorporation likewise do 
not state in detail what the financial leverage mechanism used in the product in 
question consists of and what the consequences thereof are for the value of the 
share account, in particular that the fact that both the profit and the loss are 
calculated on the basis the total invested premium. The value of the unit share and 
a significant decrease in its value during the initial period of investment was 
affected by the fact the assets in question (structured bonds), in which the monies 
of the fund were invested, were partially paid financial instruments – as a result of 
the financial leverage mechanism.  
14 When offering the product, Bank Y employee R.N. informed clients that it was an 
investment product with a capital guarantee at the end of the contract. In the event 
of early withdrawal from the contract there was no capital guarantee and the client 
had to pay a termination fee. The capital guarantee covered the amount paid by 
the client throughout the term of the contract. 
15 The financial leverage mechanism – leverage in such a way that it had to pay 20% 
of declared investment of PLN 101 250 and the bank was to add the rest – was 
explained to the applicant. The entire declared amount – PLN 101 250 – was to 
produce profit. At the meeting with the adviser, R.N., the applicant was not 
informed of the risks associated with the product or that the loss would also be 
calculated on the basis of the declared amount. 
16 The creator of the entire product ‘L.’ was TUŻ, a limited liability company 
established in W. In the process of providing the applicant with coverage, Bank Y, 
a public limited company established at W., acted solely as the policyholder and 
had no influence on the parameters of the product. Bank Y was not involved in the 
creation of that product. On the other hand, Bank Y did draw up training materials 
to train Bank Y employees in how to offer TUŻ products. Those training materials 
were accepted by TUŻ. 
17 R.N. received product and sales training. The training relating to product ‘L.’ 
lasted about two weeks and concerned inter alia the product offering, the 
construction of the product, the principles of the product and the sales processes. 
TOWARZYSTWO UBEZPIECZEŃ Ż S.A. 
 
7 
The Bank Y employees offering investment products were also trained as regards 
the construction of investment products, and their economic aspects and 
principles. 
18 When it learnt of its share account balance – which was considerably less than the 
sum of the premiums paid – the applicant decided to discontinue the contract. By 
letter of 4 April 2017, the applicant withdrew from the assurance contract and 
requested that the defendant refund all the monies paid. By letter of 25 April 2017, 
TUŻ refused to comply with the applicant’s request. 
19 The value of the monies in the account on the date on which the assurance 
contract ended was PLN 37 161.15. TUŻ deducted a termination fee of 
PLN 18 580.58 (50% of the value of the share account). The sum of the premiums 
paid by the applicant during the term of the contract amounted to PLN 58 806. 
Essential arguments of the parties to the main proceedings 
20 In the view of the applicant, the Terms and Conditions of Assurance L. contained 
vague, unclear and imprecise provisions which thus mislead the applicant, the 
customer, who was not in a position to determine itself, on the basis thereof, the 
nature and make-up of the product purchased. 
21 In so far as it may be concluded that the assured person was able to obtain from 
the assurer information on the ‘units’ assigned to it, the value of the share 
remained dependent on the value of unit-link fund as a whole. However, the 
Terms and Conditions of the Assurance ‘L.’ did not specify how that final value 
(the value of the ULF as a whole) was to be determined, referring in that regard to 
the Fund’s Instrument of Incorporation. However, the provisions of the Fund’s 
Instrument of Incorporation provided that the value of the units was to be the net 
asset value of the fund or the total number of units. The net asset value was 
defined as the value of the assets less liabilities. How the value of the fund’s net 
asset value was determined in the Fund’s Instrument of Incorporation drawn up by 
the defendant assurance fund was defined in very vague terms by the statement 
that that value was to be determined ‘according to a market value allowing for a 
fair reflection of their value, subject to the principle of making valuations on a 
prudent basis’. However, the Fund’s Instrument of Incorporation did not state who 
was to carry out that valuation and how. 
22 According to the Fund’s Instrument of Incorporation, the monies of the unit-
linked fund are to be invested in certificates issued by BV, that is to say a foreign 
company not operating in Poland, with the payment of those certificates based on 
an index referred to in the Instrument of Incorporation as the BV INDEX. The 
Instrument of Incorporation states that the index was created by the BV – Bank, 
whilst the applicant claimed that the provisions of the Instrument of Incorporation 
do not specify which objectivised criteria are used to establish the values of that 
index. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
8  
23 Neither the Terms and Conditions of Assurance ‘L.’ nor the Fund’s Instrument of 
Incorporation state the rules and mechanisms for valuing the units in the fund 
during the term thereof or on its termination. 
24 An analysis of the Fund’s Instrument of Incorporation led the applicant to 
conclude that the value of benefits due to the assured person under the assurance 
contract will be established not on the basis of objectively verifiable and generally 
available market data but in a manner resulting from methods, criteria and data not 
shown in the Terms and Conditions and the Fund’s Instrument of Incorporation. 
25 The applicant pointed out that, when offering the product, the adviser failed to 
inform it not only that the profit is burdened with risk but that the applicant might 
not recover the paid-up capital. He did not warn the applicant that it could suffer a 
loss even if the index on which the fund is based increased. 
26 The applicant claimed that the practice of selling products which are essentially 
investment products not adapted to the needs of the client, and the failure reliably 
to inform clients (including emphasising the possibility of gaining above-average 
profits combined with the marginalisation of information about the risk) is unfair. 
27 In response to the application, the defendant TUŻ contended that the action should 
be dismissed in its entirety and that the applicant should be ordered to pay its 
costs. The defendant raised inter alia an objection that the TUŻ lacked capacity to 
be sued in connection with the plea alleging unfair commercial practices since the 
pleas raised by the applicant concern the process of selling assurance products by 
an employee of the policyholder – the Bank Y – and not actions and omissions of 
the defendant – the public limited company TUŻ. An objection that the action is 
time-barred in this regard was raised at the same time. 
28 With reference to the plea alleging unfair commercial practices, the defendant 
argued that the applicant had failed to prove use of unfair commercial practices in 
the offering of the product and the applicant’s accession to the group assurance 
contract. The defendant denied having engaged in an unfair commercial practice. 
The applicant had failed to prove that the defendant had offered the product 
unfairly by presenting its qualities in a misleading manner. 
29 It was also argued that Bank Y, as a separate entity, offered its clients accession to 
the assurance contract as insured persons as part of the economic activity in which 
it was engaged. Thus, the actions performed by Bank Y were actions performed 
by that entity on its own behalf and in its own name. 
30 The defendant company had complied with its obligations to provide information 
and all the information about the assurance was contained in the documents which 
the applicant received. Consequently, the applicant was perfectly aware of the 
nature of the product to which it was acceding. Since the applicant was aware of 
the nature of the product and had an opportunity to learn about the associated risks 
before acceding to it, the applicant cannot be regarded as having had its interest 
infringed. 
TOWARZYSTWO UBEZPIECZEŃ Ż S.A. 
 
9 
Succinct reasons for the reference 
31 The definition of ‘commercial practices’ contained in Article 2(d) of Directive 
2005/29/EC is very general. It is clear from the case-law of the Court of Justice of 
the European Union that this term is to cover any form of actions or omissions by 
a trader which could potentially or actually influence consumer choices and 
decisions directly connected with the sale or promotion of a product. 
Consequently, under national law it is assumed that unfair commercial practice 
covers any form of conduct by a trader, provided that there is a direct connection 
between the action or omission and the promotion or purchase of a product by a 
consumer. It is stated that actions of a trader which fall within the definition of 
practice include: advertising, commercial information, marketing, and promotion. 
32 It would appear that in its previous case-law the Court of Justice has not ruled 
expressly on the meaning of the term ‘causal link’ for the purposes of Directive 
2005/29/EC. In national case-law the issue of direct link was raised by the Sąd 
Najwyższy (Supreme Court) when it ruled that the Law on combating unfair 
commercial practices applies to actions or omissions directly connected with the 
promotion or purchase of a product by a consumer, with not only the trader’s 
marketing conduct but also other means of distinguishing its products among the 
product offered on the market being relevant. 
33 In this context, the referring court was uncertain whether an unfair commercial 
practice within the meaning of Directive 2005/29/EC is also engaged in by the 
trader who is the author of a standard contract – the Terms and Conditions and the 
Fund’s Instrument of Incorporation, which underlie the functioning of the sales 
offering drawn up by another trader. The author of the standard contract (the 
assurer) does not market the product directly and is not directly responsible for 
marketing the product. That is done by a party with which it has a contract (the 
policyholder). Against this background, uncertainty arose as to whether, in such a 
mix of relationships, it is possible to find that the author of the standard contract 
also engages in an unfair commercial practice within the meaning of Directive 
2005/29/EC. 
34 In the present case, the applicant was offered an opportunity to accede to the 
group endowment and life assurance contract with the unit-linked fund L. The 
group assurance contract was concluded between TUŻ, a public limited company 
established in W., and Bank Y, a public limited company established in W. In this 
trilateral legal relationship, TUŻ acts as assurer, creator of the product and author 
of the standard contract used in the relationship with the consumer – the Terms 
and Conditions of Assurance L., the table of fees and limits and the Fund’s 
Instrument of Incorporation. Bank Y, on the other hand, acts as the policyholder, 
which was simultaneously the actual assurance distributor. It is Bank Y which was 
responsible for attracting the clients who acceded to the group assurance ‘L.’, 
including being responsible for presenting the sales offering and the product to the 
applicant. The evidence gathered in the present case – the information provided by 
Bank Y – shows that the training materials used to give Bank Y employees 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
10  
training in product L., were accepted by the assurer, the defendant TUŻ. On the 
other hand, as the policyholder Bank Y had no influence over the parameters of 
the product and took no part in the creation of that product. 
35 In this situation, the question arises as to which entity is responsible for engaging 
in an unfair practice towards the applicant consisting in the presentation of a 
product on the basis of a misleading standard contract. It would appear to follow 
from Article 3(1) of Directive 2005/29/EC that it will be the trader with whose 
activity the marketing of the product is connected – in the present case, the 
policyholder. The substance of the above provision appears to concentrate the 
meaning of the term ‘unfair commercial practice’ only around the circumstances 
related to the conclusion of the contract and the presentation of the product to the 
consumer and not the earlier stage related to the actual construction of the product 
and determination of the content of the standard contract. Recital 7 of Directive 
2005/29/EC also addresses commercial practices directly related to influencing 
consumers’ transactional decisions in relation to products. 
36 On the other hand, however, having regard to the multiplicity and diversity of 
contractual relations involving consumers, such an interpretation does not appear 
appropriate, in particular in the context of recital 13 of Directive 2005/29/EC and 
also the obligation, highlighted in the preamble to the directive, on traders to 
provide information (in particular as regards financial services, by reason of their 
complexity) and the objective of maintaining consumer confidence. This is of 
particular relevance in the context of the facts of this case. The applicant claims 
that the defendant assurer (which is responsible for the construction of the product 
and the standard contract) uses an unfair market practice consisting in misleading 
it as to the qualities of the product offered to it by another trader. The assurer, on 
the other hand, raises the objection that it cannot be responsible for an unfair 
commercial practice as it was not responsible for marketing the product. At the 
same time, it is clear from the findings of the court that the product was offered to 
the applicant on the basis of the Terms and Conditions of Assurance L. and the 
Fund’s Instrument of Incorporation drawn up by the defendant TUŻ, documents 
which at the same time constituted the standard contract delivered to the applicant 
following the signing of the declaration of accession to the contract. 
37 The court’s uncertainty does not encompass the actual responsibility of the 
policyholder, Bank Y, for the misleading presentation of the product. However, 
uncertainty is raised by a situation in which the consumer was not provided, 
during the presentation, with complete and clear information about the product 
purchased – in this case assurance with UFK ‘L.’ – and at the same time this 
information was not contained expressly in the standard agreement – the Terms 
and Conditions of the Assurance ‘L’ and the Fund’s Instrument of Incorporation. 
Therefore, in the view of the court, the question arises as to whether, where a 
trader uses a standard contract, which does not comply with the principle of 
transparency, which is incomprehensible and unclear to the average consumer and 
on the basis of the which consumer is unable to reconstitute the essential qualities 
of the product, it can, in a situation where the trader is not involved at the stage 
TOWARZYSTWO UBEZPIECZEŃ Ż S.A. 
 
11 
where the product is offered and presented to the consumer, be classified as an 
unfair commercial practice. 
38 In this case, there is a stage at which the product is offered to the consumer, before 
the transaction is concluded. The product is presented by one trader (the 
policyholder) on the basis of a standard contract supplied by another trader (the 
assurer). At the same time, the court considers that the standard contract 
constructed by the assurer was formulated in a manner which could be misleading. 
In particular, the standard contract (in particular the Instrument of Incorporation) 
refers, as regards the methods for valuing the product, to complicated rules on 
accounting and the valuation of financial instruments contained in other detailed 
legal acts, without at the same time indicating those acts and without explaining 
clearly and unequivocally to the consumer what the valuation consists of and how 
it ‘works’. 
39 In the situation set out above, the question arises as to whether the term 
‘commercial practice’ contained in Directive 2005/29/EC also covers a trader’s 
conduct consisting in the construction of a misleading standard contract which 
then underlay the functioning of the sales offering of another trader and at the 
same time defined the substance of the obligation between the consumer and the 
assurer. If the term ‘commercial practice’ does also cover a trader’s conduct 
consisting in the construction of a misleading standard contract, is the trader 
responsible for engaging in a unfair commercial practice towards a consumer 
under Directive 2005/29/EC the trader responsible for formulating the misleading 
standard contract, or the trader which, on the basis of that standard contract, 
presents the product to the consumer and is directly responsible for marketing that 
product, or must it be concluded that both traders bear responsibility under 
Directive 2005/29/EC? 
40 Furthermore, according to the case-law of the Court of Justice, in the light of 
Article 3(2) of Directive 2005.29/EC a finding that a commercial practice is unfair 
has no direct effect on the validity of the contract but it may be one element 
among others on which the competent court may base its assessment of the 
unfairness of contractual terms under Article 4(1) of Directive 93/13. 
41 In this context, the referring court is uncertain in the present case whether an 
interpretation of Article 12(1)(4) of the LCUCP which leads to the consumer 
being granted, under national measures, the right to apply for a declaration of 
invalidity of a contract, where it is shown that the contract was concluded as a 
result of the trader using an unfair commercial practice, is compatible with 
Articles 11, 11a, 13 and 3(2) of Directive 2005/29/EC. 
42 As stated in the opinion of the Advocate General delivered on 29 November 2011 
in the case of Pereničová and Perenič v SOS financ spol. (paragraphs 83 to 86), 
Directive 2005/29/EC contains no provisions which provide for contractual term 
being declared invalid. Instead, Article 3(2) of Directive 2005/29 states that the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-208/21 
 
12  
‘directive is without prejudice to contract law and, in particular, to the rules on the 
validity, formation or effect of a contract’. 
43 If it is concluded that, under national measures, granting a consumer the right to 
have declared invalid a contract concluded under the influence of an unfair 
commercial practice, as part of a self-contained penalty, is not compatible with 
Article 3(2) of Directive 2005/29/EC, uncertainty also arises about the possible 
concurrence of Directive 2005/29/EC with Directive 93/13 and the possibility of 
assessing the fact that the trader uses an incomprehensible and unclear standard 
contract on the basis of which consumer is unable to reconstitute the essential 
qualities of the product and the investment risk borne by him, under Article 3(1) 
of Directive 93/13. 
44 The trader’s failure to provide the consumer with detailed information can be 
classified as an unfair commercial practice. However, having regard to the rule 
arising from Article 3(2) of Directive 2005/29/EC that that directive is without 
prejudice to contract law and, in particular, to the rules on the validity, formation 
or effect of a contract, the question arises as to whether appropriate basis for 
judicial intervention in a particular contractual obligation, such as that applied for 
by the consumer in the dispute with the trader, will be the provisions of Directive 
93/13. Consequently, the question arises as to whether it is through the prism of 
Article 5 of Directive 93/13 that it is necessary to assess the contractual terms 
contained in the Fund’s Instrument of Incorporation and which, as a whole, make 
up the distribution and scale of the investment risk arising from the contract, 
which is borne by the consumer during the term of the contract.