Opinion of the Advocate General — ECLI:EU:C:2002:66
Date: 2002-01-31
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Sweden

Summary of the Judgment
Acts of the institutions — Directives — Implementation by the Member States — Need
for full transposition — List contained in the annex to the Directive reproduced in its
entirety in the preparatory work for the implementing law — Whether permissible
(Council Directive 93/13, Art. 3(3))
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SUMMARY — CASE C-478/99
Each of the Member States to which a
directive is addressed is obliged to adopt,
within its national legal system, all the
measures necessary to ensure that the
directive is fully effective, in accordance
with the objective it pursues. It is essential
that the legal situation resulting from
national implementing measures be suffi­
ciently precise and clear and that individ­
uals be made fully aware of their rights so
that, where appropriate, they may rely on
them before the national courts.
The latter condition is of particular import­
ance where the directive in question is
intended to confer rights on nationals of
other Member States, as is the case for
Directive 93/13 on unfair terms in con­
sumer contracts. As regards the annex
referred to in Article 3(3) of the Directive,
the annex in question is, according to the
terms of Article 3(3), to contain an indica­
tive and non-exhaustive list of terms which
may be regarded as unfair. It is not
disputed that a term appearing in the list
need not necessarily be considered unfair
and, conversely, a term that does not
appear in the list may none the less be
regarded as unfair. In so far as it does not
limit the discretion of the national auth­
orities to determine the unfairness of a
term, the list contained in the annex to the
Directive does not seek to give consumers
rights going beyond those that result from
Articles 3 to 7 of the Directive. It in no way
alters the result sought by the Directive
which, as such, is binding on Member
States.
It follows that the full effect of the Direc­
tive can be ensured in a sufficiently precise
and clear legal framework without the list
contained in the annex to the Directive
forming an integral part of the provisions
implementing the Directive. Inasmuch as
the list contained in the annex to the
Directive is of indicative and illustrative
value, it constitutes a source of information
both for the national authorities respon­
sible for applying the implementing meas­
ures and for individuals affected by those
measures. Member States must therefore, in
order to achieve the result sought by the
Directive, choose a form and method of
implementation that offer a sufficient guar­
antee that the public can obtain knowledge
of it.
(see paras 15, 18, 20-22)
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