Opinion of the Advocate General — ECLI:EU:C:2010:401
Date: 2010-07-06
Language of the case: Hungarian
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary of the findings of the Court in Pannon that are relevant to this case in the light of the previous case-law. 105. It has been the settled case-law of the Court since Océano Grupo (64) that ‘the protection provided for consumers by the Directive entails the national court being able to determine of its own motion whether a term of a contract before it is unfair’, including ‘when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts’. However, that wording left open the question whether the Court had accepted the proposition of a national court examining unfair terms of its own motion as an obligation or merely as a possibility. Pannon helped to provide an important clarification in so far as the Court has now held that the task of the national court is ‘not limited to a mere power to rule on the possible unfairness of a contractual term’, but also consists of an obligation to do so. (65) That obligation applies to all unfair terms and, therefore, also to clauses conferring jurisdiction. The Court assumed the existence of an obligation to undertake an examination as long ago as Cofidis (66) and did so even more clearly in Mostaza Claro. (67) In Pannon, the Court added that the obligation on the national court to undertake an examination of its own motion applies only where the contractual term becomes ineffective under Article 6(1) of Directive 93/13 ipso iure and that the consumer does not need to make an application to that effect. (68) 106. A further innovation introduced by Pannon consists in the clarification that the national court has the possibility of applying the term in question if the consumer, after having been informed of it by that court, does not intend to assert its unfair status. (69) The advantage of that approach is that it refrains from imposing protection on the consumer but is based rather on the idea of protecting consumers by providing them with information. (70) 3. Legal observations 107. However, as the Commission rightly observes, the question referred is not concerned with the situation where a contractual term is in fact unfair, but only with the situation where the national court is made aware of the possible unfairness of a contractual term; in other words, it only suspects unfairness but is not able to establish it with certainty. As Directive 93/13 makes no provision in this regard, national procedural law would in principle be applicable, in accordance with the principle of the procedural autonomy of the Member States. (71) 108. On the other hand, the principle of the procedural autonomy of the Member States must not have the effect of hindering the protection of the consumer required by Articles 6 and 7 of Directive 93/13. (72) The Court’s findings in paragraph 34 of Pannon to the effect that ‘the specific characteristics of the procedure for determining jurisdiction, which takes place under national law between the seller or supplier and the consumer [are not] a factor which is liable to affect the legal protection from which the consumer must benefit under the provisions of the Directive’ must also be construed to that effect. Ad hoc intrusions into the procedural regulatory autonomy of the Member States are therefore required in certain cases in order to achieve the aims of the Directive. (73) The question is whether such intrusion by the Community into the procedural regulatory autonomy of the Member States is discernible in Pannon and, if not, whether such intrusion is required. 109. It is true that, in paragraph 35 of Pannon, the Court held that the national court is required to examine, of its own motion, the unfairness of a contractual term ‘where it has available to it the legal and factual elements necessary for that task’. The Court adopted that wording again, most recently in Asturcom. (74) However, in my view, that sentence must be understood as meaning that the obligation to undertake an examination arises only where the pleas in law and arguments of the parties or the other circumstances of the case contain evidence indicating to the court that a term may be unfair. (75) Only in that event must it pursue of its own motion its misgivings with respect to the validity of the term, without there being any requirement for one of the parties to raise a specific complaint as to its unfairness. (76) On the other hand, that judgment does not show that the national court has the same obligation where it does not have such evidence available to it. 110. In other words, there is no provision in Community law which requires the national court to undertake an investigation of its own motion for the purpose of obtaining the legal and factual elements necessary to assess the unfairness of a contractual term where it does not have such elements available to it. The powers of the national court are determined rather by national procedural law. It should be pointed out in this connection that, in the laws of the Member States, civil law is characterised by the principle that it is for the parties to take the initiative, under which the parties are responsible for submitting all relevant facts on which the court must then base its decision. The same is obviously also true of the Hungarian law of civil procedure, as the fourth question certainly makes it clear that the taking of evidence can be ordered only upon application by the parties. Under the Hungarian Code of Civil Procedure, evidence must therefore in principle be designated by the parties to the dispute. (77) 111. The Court of Justice unmistakably recognised the limits which that particular feature of national civil procedure imposes on examination by the national court of its own motion in van Schijndel and van Veen (78) when it held that ‘Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim’. It follows from this that the principle of party presentation imposes on the power of the national court to undertake an examination in civil proceedings limits which Community law must tolerate. (79) 112. Notwithstanding the foregoing, it is questionable from the outset whether it is absolutely necessary at all to impose on the national court a comprehensive obligation to undertake an examination in order to achieve the aim of reviewing unfair terms pursued by Directive 93/13. A contractual term which, if reviewed, would have to be classified as unfair because it confers jurisdiction in respect of litigation arising from the contract on the court in the territorial jurisdiction of which the seller or supplier has his registered office (80) could be examined by the national court as part of an examination, of its own motion, of its own jurisdiction, in which event the court would not be dependent on detailed submissions from the parties. Indeed, this is confirmed by the procedural position in the main proceedings. The documents before the Court show that the referring court noticed before setting the date for the oral hearing that the defendant’s place of residence was not situated within its territorial jurisdiction but that the claimant had made its application for the order for payment, on the basis of the standard contractual terms, to the court close to its registered office, which prompted doubts on the part of the referring court in relation to the contractual provision in question. In this way, the referring court effectively indicates its suspicion as to the existence of an unfair jurisdiction clause. 113. However, even in cases involving not jurisdiction agreements but substantive contractual obligations, the national court should have available to it at least a copy of the consumer contract as the most important item of evidence in relation to the claims raised. In those circumstances, the national court would already have the ‘factual and legal elements necessary’ – within the meaning of Pannon – to enable it to examine the unfairness of a contractual term of its own motion. It would thus be in a position to discharge its obligation to examine the unfairness of a contractual term of its own motion. In many cases, the national court is therefore unlikely to encounter any particular practical difficulties. This does not rule out the possibility that there may, in practice, be contractual terms the fairness of which is discernible only after thorough examination. However, as I have already explained, in the absence of a legal obligation to that effect under Community law, such an examination may be undertaken only in accordance with national procedural law. 114. The aforementioned principles of equivalence and effectiveness (81) do not require recognition of an obligation on the national court to undertake an examination. As far as safeguarding equivalence in the case in question is concerned, it would seem that the national court does not have any more powers in proceedings relating only to national law than in proceedings intended to ensure protection of the rights accruing to citizens under Directive 93/13. There is in this regard no indication of any infringement of the principle of equivalence. Nor is there any evidence of how the exercise of the rights conferred by Directive 93/13 has been made practically impossible or excessively difficult. Indeed, the foregoing submissions (82) themselves show that the absence of an obligation on the national court under the law of the Member State to undertake an examination does not necessarily prevent the national court, when examining its jurisdiction of its own motion or through the pleas in law and arguments of the parties, from acquiring knowledge of the factual and legal elements necessary to be able to assess the unfairness of a contractual term. Nor does it prevent it, to the extent necessary, from discussing with the parties the factual and legal elements of the subject-matter and issues of the dispute, and putting questions to them in this regard, as part of its material direction of the course of the proceedings. (83) In so far as such an obligation to direct the course of the proceedings is provided for in national law, it falls to the national court in that connection to ensure that the parties make full and timely statements in relation to all the material facts, and, in particular, supplement insufficient information given in respect of the facts alleged, designate the evidence adduced and make appropriate applications. (84) It follows from this that the absence of an obligation on the national court to undertake an examination cannot be regarded as infringing the principles of equivalence and effectiveness. 115. It is true that the general Community-law principle of effective legal protection requires the Member States to make available to citizens of the European Union legal remedies enabling them to enforce before the courts the rights conferred on them by Community law. To a holder of rights the ability to enforce those rights before the courts is of fundamental importance since it determines the practical value of the legal status accorded to him. This does not mean, however, that Community law requires the principle of the active role of the parties in civil proceedings to be abandoned in favour of the principle of court-directed and court-investigated proceedings. Such a requirement would far exceed the aim of effective legal protection and would therefore infringe the Community-law principle of proportionality. (85) The principle of effective legal protection requires only that the Member States take appropriate measures to protect the individual from loss of the rights conferred on him by Community law through ignorance of what steps to take and how to take them in legal proceedings. The Member States have discretion as to the choice of means for ensuring the observance of that principle. The availability – and, in large-scale and complex judicial proceedings, the requirement – of legal representation (in conjunction with the grant of legal aid), the duty of the court to guide, question and clarify and its aforementioned obligation to direct the course of the proceedings (86) arguably represent adequate means of protecting the parties which, at the same time, intrude less into the procedural autonomy of the Member States. 4. Conclusion 116. The answer to the fourth question must therefore be that Directive 93/13 is to be interpreted as meaning that it does not require a national court which observes that a term in a contract may be unfair to undertake, of its own motion, an examination to establish the legal and factual elements necessary for that assessment, where national procedural law permits such an examination only on application by the parties and the parties have not made an application to that effect. VII – Conclusion 117. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Budapesti II. és III. Kerületi Bíróság as follows: 1. Neither Article 23 of the Statute of the Court of Justice nor the other provisions of Community law contain any legal provisions that preclude a national rule of procedure which requires national courts, when submitting references for a preliminary ruling to the Court of Justice, to send them at the same time to the Ministry of Justice for information purposes. 2. The Court of Justice also has jurisdiction under Article 234 EC to interpret the concept of ‘unfair terms’ within the meaning of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts as well as the terms listed in the Annex to that directive. 3. A reference for a preliminary ruling which seeks such an interpretation may, in the interests of the uniform application in all the Member States of the level of protection afforded to consumers’ rights under Directive 93/13, ask what aspects the national court may or must take into account if the general criteria laid down in the Directive are applied to a particular individual term of a contract. 4. Directive 93/13 is to be interpreted as meaning that it does not require a national court which observes that a term in a contract may be unfair to undertake, of its own motion, an examination to establish the legal and factual elements necessary for that assessment, where national procedural law permits such an examination only on application by the parties and the parties have not made any application to that effect. 1 – Original language: German. 2 – Under the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the preliminary ruling procedure is now governed by Article 267 of the Treaty on the Functioning of the European Union. 3 – OJ 1993 L 95, p. 29. 4 – Case C‑243/08 Pannon [2009] ECR I‑4713. 5 – OJ 2008 C 115, p. 210. 6 – OJ 2006 L 399, p. 1. 7 – See Case C-244/80 Foglia v Novello [1981] ECR 3045, paragraph 14. In that case, the Court held that Article 234 EC is based on cooperation which entails a division of duties between the national courts and the Court of Justice in the interest of the proper application and uniform interpretation of Community law throughout all the Member States. See also to this effect Everling, U., Das Vorabentscheidungsverfahren vor dem Gerichtshof der Europäischen Gemeinschaften, Baden-Baden 1986, p. 21, and Wägenbaur, B., Kommentar zur Satzung und Verfahrensordnungen EuGH/EuG, Munich 2008, Article 23 of the Statute of the European Court of Justice, paragraph 2, p. 27. 8 – The entry into force of the amending treaty has no bearing on the legal assessment of this case. As the reference for a preliminary ruling was made before 1 December 2009, the old numbering based on the Treaty of Nice will be used hereafter. 9 – See to this effect Lenaerts, K./Arts, A./Maselis, I., Procedural Law of the European Union, 2nd ed., p. 188, paragraph 6-003, p. 175, who point out that the annexes and protocols appended to the Treaties have the same legal effect as the Treaties themselves. 10 – See Case C‑42/07 Liga Portuguesa de FutebolProfissional [2009] ECR I‑7633, paragraph 40. In that case, the Court held that the information that must be provided to it in connection with a reference for a preliminary ruling does not serve only to enable the Court to provide answers which will be of use to the national court; it must also enable the Governments of the Member States, and other interested parties, to submit observations in accordance with Article 23 of the Statute of the Court of Justice. 11 – See Case C‑2/08 Fallimento Olimpiclub [2009] ECR I‑7501, paragraph 24. The Court of Justice sometimes uses the expression ‘principle of procedural autonomy’ in its case-law. 12 – See Case 127/73 BRT‑I [1974] ECR 51, paragraphs 7 to 9. 13 – See Order of 16 June 1970 in Case 31/68 Chanel v Cepeha [1970] ECR 404. 14 – See Case C-65/81 Reina [1982] ECR 33 paragraph 7; Case C‑10/92 Balocchi [1993] ECR I‑5105, paragraph 16; Case C‑39/94 SFEIand Others [1996] ECR I‑3547, paragraph 248; and Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke [2001] ECR I‑8365, paragraph 19. 15 – See Case C‑42/07 Liga Portuguesa de FutebolProfissional (cited in footnote 10 above, paragraph 40). In that case, the Court referred to its settled case-law to the effect that it is firstly necessary that the national court should define the factual and legislative context of the questions which it is asking or, at the very least, explain the factual circumstances on which those questions are based. Secondly, the order for reference must set out the precise reasons why the national court is unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. In consequence, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link which it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings. 16 – See to this effect Joined Cases C‑430/93 and C‑431/93 van Schijndel und van Veen [1995] ECR I‑4705, paragraph 17; Joined Cases C‑279/96 to C‑281/96 Ansaldo Energia and Others [1998] ECR I‑5025, paragraphs 16 and 27; Case C‑326/96 Levez [1998] ECR I‑7835, paragraph 18; Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 31; Case C‑472/99 Clean Car Autoservice [2001] ECR I‑9687, paragraph 28; Case C‑129/00 Commission v Italy [2003] ECR I‑14637, paragraph 25; Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, paragraph 57; Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 24; Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 28; and Case C‑40/08 Asturcom [2009] ECR I‑9575, paragraph 38. 17 – After all, it should be borne in mind here that, in addition to serving the objective function of ensuring the uniform application of Community law in the Member States, the preliminary ruling procedure is also important for the protection of individual rights. Natural or legal persons, on whom Article 230(4) EC confers only a limited right of action against Community legislative acts, have the possibility, as parties to judicial proceedings in a Member State, of claiming before the national court that the Community acts relevant to the outcome of their proceedings are invalid or of obtaining an interpretation of Community law favourable to them by means of the preliminary ruling procedure before the Court of Justice (see in this regard Schwarze, J., in EU-Kommentar [ed. Jürgen Schwarze], 2nd ed., Baden-Baden 2009, Article 234 EC, paragraph 4, p. 1810). 18 – In Case 244/78 Union Laitière Normande [1979] ECR 2663, paragraph 5, the Court held that, while Article 234 EC does not permit the Court of Justice to evaluate the grounds for making the reference, the need to afford a helpful interpretation of Community law makes it essential to define the legal context in which the interpretation requested should be placed. In the opinion of Lenaerts, K./Arts, A./Maselis, I., loc. cit. (footnote 9), p. 188, paragraph 6‑021, there is nothing to prevent the Court of Justice from setting out its understanding of the facts in the main proceedings and certain aspects of national law as a starting point for providing a helpful interpretation of the applicable provisions and principles of Community law. 19 – See paragraph 55 of the Hungarian Government’s observations. 20 – See to this effect Kahl, W., in EUV/EGV-Kommentar (ed. Christian Calliess/Matthias Ruffert), 3rd ed., Munich 2007, Article 10, paragraph 47, p. 450. 21 – See Case C‑224/01 Köbler [2003] ECR I‑10239. 22 – See Commission v Italy (cited in footnote 16 above, paragraph 33 et seq.), although without reference to Article 10 EC. 23 – See Köbler (cited in footnote 21 above). On the possibility of an action for failure to fulfil obligations and State liability under Community law, see Lenaerts, K./Art, D./Maselis, I., loc. cit. (footnote 9), paragraph 2-053 et seq., p. 77 et seq. 24 – The Court has repeatedly held that the system established by Article 234 EC with a view to ensuring that Community law is interpreted uniformly in the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties (see Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 41 and Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 90. As Everling, U., loc. cit. (footnote 7), p. 16, states, it is immediately apparent that the authorities and courts of the various Member States would make quite different decisions in this regard if there were no provision for the uniform interpretation of Community law. That task falls to the Court of Justice in the preliminary ruling procedure. The Court has emphasised from the outset that the uniform interpretation and application of Community law is one of the fundamental principles of Community law and that it cannot be called into question by any national provision, however framed. The Court makes reference in this regard to Rheinmühlen. 25 – See the Opinion of Advocate General Poiares Maduro in Case C‑210/06 Cartesio [2008] ECR I‑9641, point 21. See also, to similar effect, Classen, C. D., Europarecht (ed. Reiner Schulze/Manfred Zuleeg), paragraph 76, p. 204, who states that the right to make a reference cannot be limited by national procedural law. 26 – See Case 166/73 Rheinmühlen [1974] ECR 33, paragraphs 2 and 3, and Case van Schijndel and van Veen (cited in footnote 16 above, paragraph 18). 27 – See point 71 of this Opinion. 28 – See Case C‑13/99 P TEAM v Commission [2000] ECR I‑4671, paragraph 35 et seq., and Case C‑64/98 P Petrides [1999] ECR I‑5187, paragraph 31. See Case T‑36/91 ICI v Commission [1995] ECR II‑1847, paragraph 93. 29 – See to this effect Sachs, B., Die Ex-Officio-Prüfung durch die Gemeinschaftsgerichte, Tübingen 2008, p. 208. The principle that the courts of the European Union are bound by the general legal principle of fair legal process was first recognised by the Court of Justice in Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 21. 30 – See also Sachs, B., (footnote 29). See Petrides (cited in footnote 28 above, paragraph 31). 31 – See Koenig, C./Pechstein, M./Sander, C., EU-/EG-Prozessrecht, 2nd ed.., Tübingen 2002, paragraph 123, p. 65. 32 – See to this effect Koenig, C./Pechstein, M./Sander, C., (footnote 31)., p. 65, Wägenbaur, B., loc. cit. (footnote. 7), Article 23 of the Statute of the Court of Justice, paragraph 2, p. 27, and Everling, U., loc. cit. (footnote 7), p. 56. In its case-law, the Court describes the preliminary ruling procedure as a ‘non-contentious procedure’ which is in the nature of a step in the action before the national court and is wholly independent of any initiative by the parties, who are merely invited to state their case within the legal limits laid down by the national court (see the Order of the President of the Court in Case C-186/01 R Dory [2001] ECR I-07823, paragraph 9, as well as the case-law cited there). In this way, the Court distinguishes the preliminary ruling procedure from the actual ‘contentious procedure’ before the national referring court. It is because of the essential difference between the contentious procedure and the step in the action provided for in Article 234 EC that it refuses, for example, to apply provisions applicable only to the contentious procedure. 33 – It can be inferred by converse reasoning that Advocate General Geelhoed clearly takes the same view in his Opinion in Joined Cases C‑20/01 and C‑28/01 Commission v Germany [2003] ECR I‑3609, point 42. The Advocate General states that the purpose of the intervention is not that the intervener should support the Community judicature by submitting written statements of case or written or oral observations in the manner of an amicus curiae, as is the case under Article 20(2) of the Statute and Article 104(4) of the Rules of Procedure. The reference to Article 104(4) of the Rules of Procedure supports the conclusion that a participant in the proceedings who submits statements of case or observations in a preliminary ruling procedure is acting as an amicus curiae. The same opinion is clearly held by Everling, U., loc. cit. (footnote 7), p. 57, who refers to the Commission’s supporting role in proceedings before the Court of Justice. He also points out that the Member States avail themselves of the possibility of submitting observations primarily where their particular interests, such as the application of national rules of law or issues involving their citizens, are affected in a specific case or where the position of the Member States in the Community system is affected generally. 34 – Wägenbaur, B., loc. cit. (footnote 7), Article 104b of the Rules of Procedure of the European Court of Justice, paragraph 9, p. 245, takes the view that, for reasons of urgency, such a reference for a preliminary ruling is sent immediately to the parties primarily concerned and only subsequently to the other participants referred to in Article 23 of the Statute, that is to say before the Court has even decided whether the reference in question should be subjected to the urgent procedure. The same applies to the decision on whether or not the reference for a preliminary ruling should be subjected to the urgent procedure. 35 – See inter alia Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; Case C‑357/98 Yiadom [2000] ECR I‑9265, paragraph 26; Case C‑245/00 SENA [2003] ECR I‑1251, paragraph 23; Case C‑55/02 Commission v Portugal [2004] ECR I‑9387, paragraph 45; Case C‑188/03 Junk [2005] ECR I‑885, paragraphs 27 to 30; and Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 31. 36 – See Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 17, and Case C‑237/02 Freiburger Kommunalbauten [2004] ECR I‑3403, paragraph 20. 37 – See also Pfeiffer, in Das Recht der Europäischen Union (ed. Grabitz/Hilf), Volume IV, Commentary on Richtlinie 93/13, Preliminary Remarks, A5, paragraph 28, p. 14, and Basedow, J., ‘Der Europäische Gerichtshof und die Klauselrichtlinie 93/13: Der verweigerte Dialog’, Festschrift für Günter Hirsch zum 65. Geburtstag, 2008, p. 58. 38 – SENA (cited in footnote 35 above). 39 – In SENA, the Court was called upon to interpret the concept of ‘equitable remuneration’ within the meaning of Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61). In its judgment, the Court referred first to the abovementioned case-law on the autonomous interpretation of Community-law concepts and went on to point out that Directive 92/100 gave no definition of that concept. In so doing, the Court clearly started from the assumption that the Community legislature had consciously refrained from establishing a detailed and binding method for calculating such remuneration. Consequently, it expressly recognised the power of the Member States to lay down their own specific methods for determining what constitutes ‘equitable remuneration’ by ‘determining what are the most relevant criteria for ensuring, within the limits imposed by Community law, and particularly the Directive, adherence to that Community concept’ and confined itself to calling upon the Member States to ensure, in the light of the objectives of Directive 92/100 as specified in its preamble, the greatest possible adherence within the Community to the concept of ‘equitable remuneration’. It is important to emphasise in this regard that the fact that that concept needed to be clarified by criteria to be established in national law did not prevent the Court from declaring that the concept of ‘equitable remuneration’ within the meaning of Article 8(2) of Directive 92/100 must be interpreted uniformly in all the Member States and implemented by each Member State. The Court was therefore ultimately able, even in the particular circumstances giving rise to that case, to affirm that the concept in question was a concept of Community law and that it required an autonomous interpretation throughout the Community. 40 – Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10). 41 – See the enabling legal basis in Article 95 EC and, for example, the first, second, third and tenth recitals of Directive 93/13. 42 – See to this effect Röthel, A., ‘Missbräuchlichkeitskontrolle nach der Klauselrichtlinie: Aufgabenteilung im supranationalen Konkretisierungskatalog’, Zeitschrift für Europäisches Privatrecht, 2005, p. 422, who points out that the overwhelming consensus among legal commentators is that the task of giving specific expression to standard terms and terms requiring further legislative definition also falls within the jurisdiction of last instance of the Court of Justice. The Court has the power of authoritative final specification and therefore the prerogative of specification. By way of arguments, the author refers to the purpose of the preliminary ruling procedure and the objective of legislative harmonisation, Community law being otherwise unable to achieve the legislative harmonisation it pursues. Leible, S., loc. cit. (footnote 44), p. 426, also points out that, according to the overwhelming consensus of legal commentators, the concept of unfairness within the meaning of Article 3(1) of Directive 93/13 should be interpreted autonomously within the European Union. To consider otherwise would be to disregard the ‘effet utile’ of secondary law and the effect of legislative harmonisation sought by directives. See to similar effect Müller-Graff, P.-C., ‘Gemeinsames Privatrecht in der Europäischen Gemeinschaft’, in Gemeinsames Privatrecht in der Europäischen Gemeinschaft, 2nd ed., Baden-Baden 1999, p. 56 et seq., who takes the view that the Court of Justice performs the function of a civil court when interpreting matters of private law. In discharging that duty, the Court of Justice, because of the existence of legal concepts which are vague and therefore require interpretation, is regularly faced with the challenge of giving specific expression to and, to this extent, also developing Community law within the framework of the purpose pursued by the provision of the directive in question. The author cites as an example the concept of unfairness in Article 3(1) of Directive 93/13. 43 – Joined Cases C‑240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I‑4941, ‘Océano Grupo’. 44 – See Océano Grupo (cited in footnote 43 above, paragraph 22). On the interpretative jurisdiction of the Court of Justice, see obviously also Leible, S., ‘Gerichtsstandsklauseln und EG-Klauselrichtlinie’, Recht der Internationalen Wirtschaft, 6/2001, p. 425. 45 – See Pannon (cited in footnote 4 above, paragraph 42). 46 – See Joined Cases 28/62 to 30/62 Da Costa [1963] English Special Edition p. 31 and Case C‑366/96 Cordelle [1998] ECR I‑583, paragraph 9. See also to this effect Craig, P./De Búrca, G., EU Law, 4th ed., Oxford 2008, p. 493, who take the view that the Court of Justice has the power to interpret the Treaty under Article 234 EC but not expressly to apply it to the main proceedings. The distinction between interpretation and application marks the division of jurisdiction between the Court of Justice and the national courts. Thus, the Court of Justice interprets the Treaty and the national courts apply that interpretation to the specific case. According to Schima, B., Kommentar zu EU- und EG-Vertrag (ed. H. Mayer), Part 12, Vienna 2003, Art. 234 EC, paragraph 40, p. 12, it is for the national courts to apply a provision of Community law to a specific dispute. However, the author concedes that it is not always easy to separate the application of a provision from its interpretation. See also to similar effect Aubry, H./Poillot, E./Sauphanor-Brouillard, N., ‘Panorama Droit de la consommation’, Recueil Dalloz, 13/2010, p. 798, who point out that the jurisdiction of the Court of Justice in the context of preliminary ruling proceedings under Article 267 TFEU extends only to interpretation but not to application, although it is not always easy to adhere to that rule in practice. 47 – See also Nassall, W., ‘Die Anwendung der EU-Richtlinie über missbräuchliche Klauseln in Verbraucherverträgen’, Juristenzeitung, 14/1995, p. 690. 48 – See my Opinion in Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid [2010] ECR I-0000, point 69. See to this effect Schlosser, P., in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 13th ed., Berlin 1998, Einleitung zum AGBG, paragraph 33, p. 18, according to which references cannot be made to the Court of Justice in order to determine whether certain terms in more specifically defined types of contract are unfair. See also to similar effect Whittaker, S., ‘Clauses abusives et garanties des consommateurs: la proposition de directive relative aux droits des consommateurs et la portée de l’harmonisation complète’, Recueil Dalloz, 17/2009, p. 1153, with reference to the case-law of the Court of Justice, above all Freiburger Kommunalbauten and Pannon. 49 – Freiburger Kommunalbauten (cited in footnote 36 above). 50 – Röthel, A., loc. Cit. (footnote 42), p. 424, expresses the view that Freiburger Kommunalbauten marked a clear change of direction on the part of the Court of Justice, which, in the context of combating unfair terms in consumer contracts, now operates on the basis of a pragmatic division of tasks between it and the national courts. Pfeiffer, T., ‘Prüfung missbräuchlicher Klauseln von Amts wegen (Gerichtsstand) – Günstigkeitsprinzip nach Wahl des Verbrauchers’, Neue Juristische Wochenschrift, 32/2009, p. 2369, considers that, in Freiburger Kommunalbauten, the Court sought to stabilise its wavering case-law on the division of tasks between it and the national courts in the context of reviewing contractual terms. Aubry, H./Poillot, E./Sauphanor-Brouillard, N., loc. cit. (footnote 46), p. 798, regard Freiburger Kommunalbauten as confirming the aforementioned division of tasks in the interpretation and application of Community law. 51 – Freiburger Kommunalbauten (cited in footnote 36 above). 52 – Ibid., paragraph 25. 53 – Ibid., paragraph 21. 54 – As long as there is no uniform European civil law, the Court of Justice continues to be dependent on the information provided by the national courts on the points of national law arising in a given domestic case for the purposes of interpreting the concept of unfairness under Article 3(1) of Directive 93/13 in relation to a specific term. That said, in principle, the Court could conceivably also draw, in the alternative, on codification models developed by European academics, such as the Draft Common Frame of Reference (DCFR), in order to find appropriate solutions to disputes at civil law. See to this effect Heinig, J., ‘Die AGB-Kontrolle von Gerichtsstandsklauseln – zum Urteil Pannon des EuGH’, Europäische Zeitschrift für Wirtschaftsrecht, 24/2009, p. 886 et seq., who refers to the continuing development of European private law and to the formulation of common European rules of contract law in the DCFR or in a future Common Reference Framework capable of providing the Court with the criteria necessary to carry out a more robust review of contractual terms at European level. A more sceptical view is provided by Freitag, R., ‘Anmerkung zum Urteil Freiburger Kommunalbauten’, Entscheidungen zum Wirtschaftsrecht, 2004, p. 398, who also considers it to be conceivable in principle that, drawing on the acquis communautaire in matters of civil law and a comparison of the legal systems of the Member States, the Court might, on a case-by-case basis, develop a ‘common European legal denominator’ applicable autonomously in Community law. However, since, in principle, Directive 93/13 covers all areas of civil law, the Court would in that event be forced into the role of a substitute civil legislature, which would create problems in relation to the horizontal distribution of powers in the Community and legal certainty. 55 – Basedow, J., loc. cit. (footnote 37), p. 61, rightly points out that justice policy considerations should be discussed openly. The author takes the view that the Court of Justice cannot rule on the unfairness of contractual terms in every individual case. On the other hand, it must retain the possibility of giving rulings which provide guidance on the interpretation even of the general provision in Article 3 of Directive 93/13. According to Heinig, J., loc. cit. (footnote 54), p. 886, the unfairness of a term may depend on many individual circumstances which, for reasons of efficiency and in the current state of European private law, it is appropriate to ask the national courts to consider. Freitag, R., ibid., p. 398, points out that the unfairness of preformulated contractual terms can be assessed only against a statutory reference criterion. As long as there is no uniform European codification of civil law, that statutory reference is constituted by the relevant national law, but this falls outside the scope of review by the Court of Justice. Whittaker, S., loc. cit.(footnote 48), p. 1154, considers the national court to be the proper forum for determining the unfairness of a contractual term, as it is better able to assess the national context in which that term is used. 56 – See to this effect Bernadskaya, E., ‘L’office du juge et les clauses abusives: faculté ou obligation?’, Revue Lamy droit d’affaires, 42/2009, p. 71, who states that it is for the national court to assess contractual terms in consumer contracts in specific cases in accordance with the rules of national law. 57 – Mostaza Claro (cited in footnote 16 above, paragraphs 22 and 23). 58 – Pannon (cited in footnote 4 above, paragraph 42). 59 – Ibid., paragraph 43. 60 – A preliminary ruling from the Court of Justice has the force, formally and materially, of res judicata and binds the referring court and all the national courts involved in the main proceedings, including the higher courts. See Case 29/68 Milchkontor [1969] ECR 165, paragraph 3. See to this effect Schwarze, J., loc. cit. (footnote 17), paragraph 63, p. 1826. 61 – See to this effect Röthel, A., loc. cit., (footnote 42), p. 427. In the author’s view, the development of the Community system of civil law depends more than any other area of law on communication and cooperation. In this respect, the preliminary ruling procedure affords fundamental opportunities for the creation of a supranational system of private law and the ongoing direction of the integration process. The author considers the Court’s judgment in Freiburger Kommunalbauten to be a step in the right direction. The division of tasks between the Court and the national courts which it outlines promises effective as well as procedurally economic results which will be widely accepted. 62 – Pannon (cited in footnote 4). 63 – See p. 2 of the order for reference of 2 July 2009. 64 – Océano Grupo (cited in footnote 43 above, paragraphs 28 and 29) and Case C‑473/00 Cofidis [2002] ECR I‑10875, paragraphs 32 and 33); and Mostaza Claro (cited in footnote 16 above, paragraphs 27 and 28). 65 – Pannon (cited in footnote 4 above). 66 – Cofidis (cited in footnote 64 above). 67 – Mostaza Claro (cited in footnote 16 above). 68 – Pannon (cited in footnote 4 above, paragraph 24). 69 – Ibid., paragraph 33. 70 – See also Heinig, J., loc. cit. (footnote 54), p. 886. Osztovits, A./Nemessányi, Z., ‘Missbräuchliche Zuständigkeitsklauseln in der ungarischen Rechtsprechung im Licht der Urteile des EuGH’, Zeitschrift für Europarecht, internationales Privatrecht & Rechtsvergleichung, 2010, p. 25, who state that, in Pannon, the Court answered the hitherto unresolved theoretical question whether the national court may also declare a term null and void where the consumer, after being informed of the term, expressly wishes to adhere to it. The authors take the view that, in that decision, the principle of ‘pacta sunt servanda’ seems to have prevailed over the ‘non-binding nature’ of unfair contractual terms, although, according to Mostaza Claro, the provisions of the Directive come under the heading of public policy. 71 – See point 65 of this Opinion. 72 – The Court has held that the court’s power to determine of its own motion whether a term is unfair must be regarded as constituting a proper means both of achieving the result sought by Article 6 of the Directive, namely, preventing an individual consumer from being bound by an unfair term, and of contributing to achieving the aim of Article 7 of the Directive, since, if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms in contracts concluded between consumers and sellers or suppliers (see Océano Grupo, cited in footnote 43 above, paragraph 28; Cofidis, cited in footnote 64 above, paragraph 32; and Mostaza Claro, cited in footnote 16 above, paragraph 27. 73 – That the principle of the procedural autonomy of the Member States is not inviolable and that intrusions may be justified is demonstrated by Heinig, J., loc. cit. (footnote 54), p. 885, who takes the view that the obligation to examine agreements conferring jurisdiction in standard business terms does not constitute an impermissible intrusion into the procedural regulatory autonomy of the Member States. As the author rightly explains, the powers of the European Union in consumer law are not confined to matters of substance but may also extend to matters of procedure. On the other hand, agreements conferring jurisdiction may themselves make it more difficult to enforce material consumer rights, as Océano Grupo and Pannon show. The fact that Directive 93/13 also covers matters of procedure is demonstrated by subparagraph (q) of paragraph 1 of the Annex, under which terms may be declared unfair if they make it more difficult for the consumer to take legal action. 74 – Cited in footnote 16 above, paragraph 53. 75 – A comparison of the various language versions shows that the subordinate clause in question signifies either a chronological sequence or a condition. Notwithstanding the minor differences between them, all the versions indicate that the examination of unfairness must take place only after the legal and factual elements necessary for that task have been obtained. Danish: ‘så snart den råder over de oplysninger om de retlige eller faktiske omstændigheder, som denne prøvelse kræver’; German: ‘sobald es über die hierzu erforderlichen rechtlichen und tatsächlichen Grundlagen verfügt’; French: ‘dès qu’il dispose des éléments de droit et de fait nécessaires à cet effet’; English: ‘where it has available to it the legal and factual elements necessary for that task’; Italian: ‘a partire dal momentoin cui dispone degli elementi di diritto e di fatto necessari a tal fine’; Portuguese: ‘desde que disponha dos elementos de direito e de facto necessários para o efeito’; Slovenian: ‘če razpolaga s potrebnimi dejanskimi in pravnimi elementi’; Spanish: ‘tan pronto como disponga de los elementos de hecho y de Derecho necesarios para ello’; Dutch: ‘zodra hij over de daartoe noodzakelijke gegevens, feitelijk en rechtens, beschikt’; Hungarian: ‘amennyiben rendelkezésére állnak az e tekintetben szükséges ténybeli és jogi elemek’. 76 – See also to this effect Mayer, C., ‘Missbräuchliche Gerichtsstandsvereinbarungen in Verbraucherverträgen: Anmerkung zu EuGH, Urteil vom 4.6.2009, C‑243/08 – Pannon GSM Zrt../Erzsébet Sustikné Györfi’, Zeitschrift für Gemeinschaftsprivatrecht, 2009, p. 221. Poissonnier, G., ‘La CJCE franchit une nouvelle étape vers une réelle protection du consommateur’, Recueil Dalloz, 34/2009, p. 2314, clearly seems to take the same view when he writes that, in Pannon, the Court linked the obligation on the national court to examine the unfairness of a contractual term of its own motion to the condition that the court must have available to it the legal and factual elements necessary for that task. See also, not so clearly but possibly to the same effect, the opinion of Aubry, H./Poillot, E./Sauphanor-Brouillard, N., loc. cit. (footnote 46), p. 798, who consider the Court’s ruling to be ‘logical from the viewpoint of procedural law’. 77 – See also to this effect Osztovits, A./Nemessányi, Z., loc. cit. (footnote 70), p. 25, who refer to Article 164 of the Hungarian Code of Civil Procedure. 78 – Cited in footnote 16 above. 79 – See to this effect Poissonnier, G., loc. cit. (footnote 76), p. 2314, who regards the principle of party presentation in civil proceedings as imposing a limit on the national court’s obligation to undertake an examination . 80 – See Océano Grupo (cited in footnote 43 above, paragraphs 21 to 24). The Court held that, where a jurisdiction clause is included, without being individually negotiated, in a contract between a consumer and a seller or supplier and where it confers exclusive jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business, it must be regarded as unfair within the meaning of Article 3 of the Directive in so far as it causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. In the Court’s view, a term of this kind obliges the consumer to submit to the exclusive jurisdiction of a court which may be a long way from his domicile. This may make it difficult for him to enter an appearance. In the case of disputes concerning limited amounts of money, the costs relating to the consumer’s entering an appearance could be a deterrent and cause him to forgo any legal remedy or defence. In the Court’s view, such a term thus falls within the category of terms which have the object or effect of excluding or hindering the consumer’s right to take legal action, a category referred to in subparagraph (q) of paragraph 1 of the Annex to the Directive. By contrast, the term enables the seller or supplier to deal with all the litigation relating to his trade, business or profession in the court in the jurisdiction of which he has his principal place of business. This makes it easier for the seller or supplier to arrange to enter an appearance and makes it less onerous for him to do so. Poissonnier, G., loc. cit. (footnote 76), p. 2313, concurs. According to Osztovits, A./Nemessányi, Z., loc. cit. (footnote 70), p. 23, that case-law has not been reflected in Hungarian legal practice for many years. In fact, it has been customary up to now for the seller or supplier to adopt in his standard terms of business a jurisidiction clause under which the parties agree to submit to the exclusive jurisdiction of the court in the territorial jurisdiction of which the seller or supplier has his principal place of business or – as is more often the case – to the court which is situated closest to the principal place of business of the seller or supplier. 81 – See point 67 of this Opinion. 82 – See point 112 of this Opinion. 83 – Herb, A., Europäisches Gemeinschaftsrecht und nationaler Zivilprozess, Tübingen 2007, p. 232, regards the obligation to direct the material course of the proceedings as an appropriate means of taking into account the consumer’s interest in taking legal action. 84 – As Poissonnier, G., loc. cit. (footnote 76), p. 2315, rightly states, nowadays, the civil court can no longer be content with ‘performing the role of a referee who counts the blows and leaves the parties to control the proceedings’. As administrator and regulator, the court plays an active role in civil proceedings. In consumer protection law, the court must act as a counterbalance, its role as such being to ensure that the rules are observed. This does not mean that it must take sides. Rather, it must act in the service of the law. Consumer protection law performs the dual function of protecting the consumer and promoting ethical market behaviour. That twin objective has changed and enriched the court’s role. It must ensure that the legislation serves its purpose and is effectively applied. 85 – See to this effect Herb, A., loc. cit. (footnote 83), p. 231 et seq. 86 – See point 114 of this Opinion.