Opinion of the Advocate General — ECLI:EU:C:2012:566
Date: 2012-09-13
Language of the case: German
Subject matter: Energy;Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 21 March 2013 1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Exclusion of contractual terms reflecting mandatory statutory or regulatory provisions — Contractual terms reproducing a rule of national law applicable to another category of contracts — Application of the directive (Council Directive 93/13, Art. 1(2)) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Common rules for the internal market in natural gas — Directive 2003/55 — Standard contractual term reserving the right for the supply undertaking to adjust the charge for the gas supply — Lawfulness — Conditions — Obligation to satisfy the requirements of good faith, balance and transparency (European Parliament and Council Directive 2003/55, Art 3(3); Council Directive 93/13, Arts 3 and 5) 3. Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments by way of interpretation — Retroactive effect — Limits — Financial consequences of the judgment — Consequences not justifying limitation of the temporal effects of the judgment (Art. 267 TFEU) 1. Article 1(2) of Directive 93/13 on unfair terms in consumer contracts, under which contractual terms which reflect mandatory statutory or regulatory provisions are not subject to the provisions of that directive, must be interpreted as meaning that that directive applies to provisions in general terms and conditions, incorporated into contracts concluded between a supplier and a consumer, which reproduce a rule of national law applicable to another category of contracts and are not subject to the national legislation concerned. If it were permitted to exclude the application of Directive 93/13 to contractual terms merely because they reproduce national statutory or regulatory provisions that do not apply to the contract concluded by the parties, or refer to such provisions, that would call into question the system of consumer protection established by that directive. In those circumstances a supplier could easily avoid review of the unfairness of terms not individually negotiated with a consumer by drafting the terms in his contracts in the same way as those laid down by national legislation for certain categories of contracts. All the rights and obligations created by a contract drawn up in that way would not necessarily correspond to the balance the national legislature intended to establish for the contracts governed by its legislation on the point. (see paras 25, 30, 31, 39, operative part 1) 2. Articles 3 and 5 of Directive 93/13 on unfair terms in consumer contracts in conjunction with Article 3(3) of Directive 2003/55 concerning common rules for the internal market in natural gas and repealing Directive 98/30 must be interpreted as meaning that a term by which a supply undertaking reserves the right to adjust the charge for the gas supply corresponds to a legitimate interest of the supply undertaking in being able to alter the charge for its service. Such a unilateral adjustment must, however, meet the requirements of good faith, balance and transparency laid down by those provisions. To assess whether the term meets those requirements, it must be ascertained: – whether the contract sets out in transparent fashion the reason for and method of the variation of those charges, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges. The lack of information on the point before the contract is concluded cannot, in principle, be compensated for by the mere fact that consumers will, during the performance of the contract, be informed in good time of a variation of the charges and of their right to terminate the contract if they do not wish to accept the variation; and – whether the right of termination conferred on the consumer can actually be exercised in the specific circumstances. (see paras 46, 47, 55, operative part 2) 3. See the text of the decision. (see paras 58-62)