Opinion of the Advocate General — ECLI:EU:C:2013:844
Date: 2013-12-12
Language of the case: Slovak
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary — Judgment of the Court (Third Chamber), 27 February 2014 1. Judicial proceedings — Oral procedure — Reopening — Obligation to reopen the oral procedure in order to permit the parties to submit observations on points of law raised in the Advocate General’s Opinion — Absence of such an obligation — Request that a person who is not party to the main proceedings be heard by the Court — Not permissible (Arts 252, second para., TFEU and 267 TFEU; Rules of Procedure of the Court of Justice, Arts 83 and 97(1)) 2. Questions referred for a preliminary ruling — Reference to the Court — Jurisdiction of national courts — Scope — Appeal against the decision ordering the reference for a preliminary ruling — Maintaining, amending or withdrawing the request for a preliminary ruling — Assessment by the referring court (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 100) 3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Proceedings for enforcement of a final arbitration award — Obligation for the court dealing with the enforcement proceedings to assess of its own motion whether the arbitration clause is unfair — Scope (Council Directive 93/13, Arts 6 and 7) 4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Means to prevent the use of unfair terms — National legislation which does not allow a consumer protection association to intervene in support of a consumer in proceedings for enforcement of a final arbitration award — Lawfulness — Limits — Observance of the principles of equivalence and effectiveness — Scope (Charter of Fundamental Rights of the European Union, Arts 38 and 47; Council Directives 93/13, Art. 6(1), 7(1) and (2) and 8) 5. Questions referred for a preliminary ruling — Jurisdiction of the Court — Interpretation of national law — Not included (Art. 267 TFEU) 1. See the text of the decision. (see paras 21-23) 2. It is clear from Article 267 TFEU that the preliminary ruling procedure presupposes that a case is actually pending before the national courts in which they are called upon to give a decision which is capable of taking account of the preliminary ruling. If the referring court indicates to the Court that the case before it is still pending, such an indication by a national court is binding on the Court and cannot, in principle, be called into question by the parties to the main proceedings. In addition, where an appeal has been brought against the order for reference, in accordance with Article 267 TFEU, the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court. Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it. It follows that the Court must — also in the interests of clarity and legal certainty — abide by the decision to make a reference for a preliminary ruling, which must have its full effect so long as it has not been revoked or amended by the referring court, such revocation or amendment being matters on which that court alone is able to take a decision. It is only if the appeal court were to decide, in accordance with the applicable national rules of procedure, to annul the referring court’s refusal to take note of the withdrawal of the applicant in the main proceedings’ action and to order that the referring court’s request for a preliminary ruling be withdrawn, that the Court could consider drawing the inferences from the appeal court’s decision and potentially removing the case from the register, after seeking, if necessary, the observations of the referring court in that regard. (see paras 28, 30-33) 3. See the text of the decision. (see paras 39-42) 4. Directive 93/13 on unfair terms in consumer contracts, in particular Articles 6(1), 7(1) and 8 of that directive, read in conjunction with Articles 38 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation which does not allow a consumer protection association to intervene in support of a consumer in proceedings for enforcement, against the latter, of a final arbitration award. Neither Directive 93/13 nor the directives which followed it, adding to the legislative framework of the protection of consumers, contain any provision governing the role which may or must be accorded to consumer protection associations in individual disputes involving a consumer. Thus, Directive 93/13 does not govern whether such associations must be entitled to intervene in support of consumers in such individual disputes. It follows that, in the absence of EU legislation concerning the possibility for consumer protection associations to intervene in individual disputes involving consumers, it is for the national legal order of each Member State to establish such rules, in accordance with the principles of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). Since Directive 93/13 does not expressly provide for a right for consumer protection associations to intervene in individual disputes involving consumers, Article 38 of the Charter of Fundamental Rights of the European Union — which provides that European Union policies must ensure a high level of consumer protection — cannot, by itself, impose an interpretation of that directive which would encompass such a right. Moreover, to the extent that Directive 93/13 requires that the national court hearing disputes between consumers and sellers or suppliers take positive action unconnected with the actual parties to the contract, the refusal to grant an association leave to intervene in support of a consumer cannot be regarded as constituting an infringement of the right of that consumer or of that association to an effective judicial remedy as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union. (see paras 45, 46, 52-54, 57, operative part) 5. See the text of the decision. (see paras 59, 60)