Opinion of the Advocate General — ECLI:EU:C:2009:682
Date: 2009-10-29
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment 1. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 (Council Directive 93/13, Arts 4(2) and 8) 2. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 (Council Directive 93/13, Arts 4(2) and 8) 3. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 (Arts 2 EC, 3(1)(g) EC and 4(1) EC; Council Directive 93/13, Arts 4(2) and 8) 1. Articles 3(1) and 4(1) of Directive 93/13 on unfair terms in consumer contracts, taken as a whole, define the general criteria permitting an assessment as to whether the contract terms subject to the provisions of the directive are unfair. Similarly, Article 4(2) of the directive is concerned solely with establishing the detailed rules and the scope of the substantive assessment of contract terms which have not been individually negotiated and which describe the essential obligations of contracts concluded between a professional and a consumer. It follows that the terms referred to in Article 4(2) do indeed come within the area covered by the directive and that, consequently, Article 8 of the directive applies equally to Article 4(2). (see paras 33-35) 2. Articles 4(2) and 8 of Directive 93/13 on unfair terms in consumer contracts must be interpreted as not precluding national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject‑matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language. In authorising the possibility of a full judicial review as to the unfairness of terms such as those referred to in Article 4(2) of the directive, provided for in a contract concluded between a professional and a consumer, national legislation makes it possible for consumers to be afforded, in accordance with Article 8 of the directive, a higher level of protection than that established by that directive. (see paras 42-44, operative part 1) 3. Articles 2 EC, 3(1)(g) EC and 4(1) EC do not preclude an interpretation of Articles 4(2) and 8 of Directive 93/13 on unfair terms in consumer contracts according to which Member States may adopt national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject‑matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language. With regard to Articles 2 EC and 4(1) EC, suffice it to state that those provisions set out general objectives and principles which are necessarily applied in combination with the respective chapters of the EC Treaty intended to give effect to those principles and objectives. They cannot therefore in themselves have the effect of creating for Member States clear and unconditional legal obligations. Likewise, Article 3(1)(g) EC also cannot, by itself, produce legal obligations for the Member States. That provision is limited to indicating an objective which must be specified more closely in other provisions of the Treaty, in particular those concerning competition rules. (see paras 46-47, 49, operative part 2)