Opinion of the Advocate General — ECLI:EU:C:2019:245
Date: 2019-03-21
Language of the case: Hungarian
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary, therefore, so far as Question 1 is concerned, I am of the view that point 1(q) of the Annex to the 1993 Directive does not amount to a general prohibition in respect of any contractual term which has not been individually negotiated and the purpose or effect of which is to reverse the burden of proof where that burden should, according to the applicable law, naturally rest with the other party. On the other hand, Article 3(1) of the 1993 Directive precludes as unfair a contractual term which has the effect of limiting or excluding the consumer’s access to a dispute resolution mechanism in circumstances where, should the national court so find, the lender has merely to invoke this term in order for the dispute to be deemed to have been resolved. 3. The second question 69. By its second question, the referring court asks whether in a case in which, pursuant to point 1(q) of the Annex to the 1993 Directive, the purpose or effect of a contract term falls to be assessed, the following types of term must be regarded as ones which prevent consumers from exercising their rights: – a term that gives a debtor with consumer status a good reason to believe that he/she must perform the contract in its entirety, including all its terms, in the manner and to the extent required by the lender, even when the debtor is convinced that the performance demanded by the lender is not due; – a term that has the effect of limiting or excluding the consumer’s access to a dispute resolution mechanism based on equitable negotiation, given that it is sufficient for the lender to invoke this contract term in order for the dispute to be deemed to have been resolved. 70. In the light of the answer to the first question, I believe that this second question should be understood as relating to the interpretation of Article 3(1) of the 1993 Directive and as seeking to ascertain whether a term falling within one of the two hypotheses mentioned by the referring court must be regarded as unfair. I propose, for reasons of convenience, to commence my analysis by first examining the second hypothesis. (a) The second hypothesis: consumers are restricted in their access to the court system 71. Article 3(1) of the 1993 Directive provides that a term which has not been individually negotiated ‘shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’. 72. As mentioned above, in order to ascertain whether, under this article, a term causes a ‘significant imbalance’, national courts must compare parties’ rights and obligations arising under the term at issue with those which would prevail without it. (18) 73. Regarding parties’ rights and obligations arising under national law, I note that, as laid down in Article 7(1) of the 1993 Directive, Member States must provide procedural rules that ensure the observance of the individual rights deriving from the 1993 Directive to prevent the continued use of unfair terms. This implies the requirement to grant consumers a right to an effective remedy, a requirement which is also enshrined in Article 47 of the Charter of Fundamental Rights. (19) 74. If the contractual term at issue in these proceedings has the effect of permitting lenders to end any litigation by deeming the dispute to have been resolved, this would in substance preclude debtors from commencing proceedings of their own. This in turn would deprive debtors of their right to an effective remedy. Such a clause would manifestly create a profound imbalance in the ordinary contractual relationship between the parties to the clear detriment of the consumer. It would, accordingly, have to be regarded as unfair within the meaning of Article 3(1) of the 1993 Directive. 75. In the present case, however, the information contained in the case file before the Court indicates that the Kúria (Supreme Court) has held in a series of judicial decisions that similar clauses merely refer to the existence of a national notarial enforcement procedure and that, therefore, such clauses do not in any way seek to foreclose the right of the borrower to commence the appropriate legal proceedings. 76. In this context, before examining whether a term of this nature can be declared unfair, one must first ascertain whether or not Article 1(2) of the 1993 Directive, according to which any contractual terms reflecting mandatory statutory provision shall not be subject to the provisions of this directive, applies. 77. In this respect, I consider that, since the Bank is not obliged to employ the national notarial enforcement procedure, such a clause cannot be regarded as mandatory for the purposes of the exclusionary provisions of Article 1(2) of the 1993 Directive. 78. However, as I have already observed, the fairness of a contractual term must be assessed by comparing rights and obligations established by the contract with those which would have prevailed in its absence. Accordingly, a clause which merely draws the attention of the customer to the existence of a legislative provision does not alter his/her situation to his/her detriment. Even in the absence of such a contractual provision, the other party would have been entitled in any event to use the legislative provision in question, assuming, of course, that it was, in fact, applicable. 79. In the present case, the disputed contractual provision seems to refer simply to the existence of a national notarial enforcement procedure, albeit that this is ultimately a matter for the national court to ascertain. If, however, this is in fact that case, therefore, for all the reasons I have just given, such a clause cannot be considered to be unfair. (b) The first hypothesis: consumers are led to believe that the contract must be performed as required by the lender 80. The first hypothesis mentioned by the referring court in the second question refers in essence to a contractual term which, viewed objectively, conveys the impression to a consumer that he must perform the contract in the manner and to the extent required by the lender, even if, in essence, the performance demanded is not due, either in full or in part. 81. As the referring court explains in its request, the hypothesis considered here refers to a contractual term which, in itself, is perfectly clear but which nonetheless gives the impression to a consumer that, once the contract has been formalised in a notarial instrument, the latter will serve as irrefutable and conclusive proof of any debt that may arise under the agreement in the future. In other words, the issue really is whether a contractual provision may be considered to be unfair merely because of the impression which an otherwise grammatically intelligible clause is liable to create in the minds of the average consumer. 82. It would, perhaps, be naive not to suppose that contract drafters may endeavour to take advantage of information asymmetries between them and consumers in a number of ways. One obvious and well known stratagem is to seek to conceal from the consumer the precise legal effects of a particular term. The second one, which seems to be implied by the referring court, arises when the drafter seeks to induce consumers to behave in a certain way when, from a legal point of view, such behaviour is not in fact required. In other words, while the information contained in the clause is legally accurate, it is nevertheless presented in a way that is apt to lead the consumer to act differently. (20) 83. Obviously, in the case of the first stratagem (i.e., that of concealment) which I have already mentioned, the clause at issue falls to be examined by reference to Article 3(1) of the 1993 Directive, as national courts must assess the real legal effect produced by the clause and determine whether such a clause creates a significant imbalance between parties’ rights and obligations to the detriment of the consumer. 84. Regarding the second stratagem, it should be recalled that the Annex to the 1993 Directive is to be interpreted as not referring to the possible objectives which may have been in the mind of the drafters of such a contractual term. (21) However, since the assessment of the fairness of a term is based, under Article 3(1) of that directive, on the balance of parties’ rights and obligations, what matters only is the legal effect produced by such a term. If such a clause only has the effect of inducing consumers to believe that they must act in a way which is not legally required, then the possible unfairness of this term is not covered by the 1993 Directive at all. 85. Besides, it must be stressed that the wording of Article 5 does not expressly state that the fact that a term is not drafted in plain, intelligible language constitutes a separate ground to declare that term unfair. This provision simply provides that in the event that a contractual term is not drafted in ‘plain, intelligible language’, then ‘where there is doubt about the meaning of a term’, the interpretation which is the most favourable to the consumer shall prevail. 86. In addition, it flows from the 16th recital and from Article 3(1) of the 1993 Directive that there is only one test of an unfair contract term, namely, the one provided for in Article 3(1) itself. Accordingly, Article 5 does not constitute an alternative test of unfairness: it rather simply provides an interpretative rule in order to determine the legal effect produced by such terms. It follows in turn that where a particular term is not drafted in plain or intelligible language, then recourse to the interpretative rule in Article 5 may serve to mitigate any potentially harsh or unfair interpretations of that provision. It is only when, even as interpreted by reference to Article 5, the contractual term still creates a contractual imbalance to the detriment of the consumer that it might be considered as unfair. In that situation, however, the unfairness will be measured by reference to the test of unfairness contained in Article 3(1) and not by reference to the interpretative rule in Article 5. 87. It is true that the judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 68), has, perhaps cast doubt, however, on the question of whether a term may be declared unfair simply because it has not been drafted in plain and intelligible language. Indeed, the Court held that the unfairness of such a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of the 1993 Directive. The Court accordingly deduced from it that a pre-formulated term on the choice of the applicable law designating the law of the Member State in which the seller or supplier is established was unfair. It did so not by reference to the legal effects of this clause, but because that term was misleading for the consumers, as they were not informed of the existence of certain mandatory statutory provisions. (22) 88. It may be noted, however, that, before reaching this conclusion, the Court recalled, in paragraph 67 of that judgment, that, in order to declare a term unfair, the latter needs to create a significant imbalance in the rights and obligations of the parties, which tends to show that the Court’s intention was not to create a second test of unfairness. 89. In any case, I consider that this judgment has perhaps somewhat overstated the scope of the ‘transparency requirement’ identified by the Court (23) in its previous case-law. (24) In these circumstances, I consider, with respect, that the Court should revert to its previous approach, according to which Article 5 of the 1993 Directive does not establish an autonomous test of unfairness which is distinct from that contained in Article 3(1). I therefore believe that the Court should rather state that Article 5 instead simply articulates an interpretative rule providing that where the relevant provisions of the contract are not drafted in ‘plain, intelligible language’, then where there is doubt about the meaning of the term in question, ‘the interpretation most favourable to the consumer shall prevail’. It is only when even after the application of the interpretative rule contained in Article 5 that the clause still produces a significant imbalance between the parties’ that the test of unfairness contained in Article 3(1) comes into play. (25) 90. The referring court may, however, wish to give some consideration to the EU legislation on unfair business-to-consumer commercial practices which contains provisions dealing specifically with misleading information and in particular, Article 6(1)(g) and Article 7(2) of Directive 2005/29. Since this directive was not mentioned by the referring court and as its relevance has not been discussed by the parties, I do not propose to elaborate further on this issue. 91. It follows, therefore, that a term cannot be declared unfair by virtue of the 1993 Directive simply because the impression may be conveyed to the consumer that the performance of a certain contractual obligation is required when, measured by reference to the actual language of the contractual term, that performance is not in fact required. In view of the test of unfairness contained in Article 3(1), it is necessary to show that the term creates a significant imbalance between parties’ rights and obligations, which, in the case at issue, operated to the detriment of the consumer. 4. The third question 92. By its third question, the referring court asks whether Article 5 of the 1993 Directive must be interpreted in the sense that a term must be considered to have been written in plain and intelligible language when its legal effects can be determined only by interpreting national laws on which the courts had not formulated a consistent position at the time the contract was concluded and in respect of which no consistent position has emerged in the subsequent years, even if the wording used is otherwise intelligible and clear. 93. As I have already noted, Article 5 of the 1993 Directive provides that ‘in the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language’. This implies that the wording of a clause should clearly articulate the legal effects brought about by such a clause. Any assessment, therefore, of whether or not a term is intelligible should be based, in the first instance at least, on the wording in question. 94. In the present case, however, the referring court refers to the situation of a term where the wording is clear, but whose legal meaning has instead been obscured by the existence of conflicting case-law concerning the interpretation of the clause in question. 95. Therefore, the question must be understood as relating to the existence of a possible obligation to inform the consumer in respect of this subject of the conflicting case-law, over and above the Article 5 obligation to draft terms in plain and intelligible language. In its judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 69), the Court held, in relation to a clause stipulating that the contract is governed by the law of the Member State in which the seller or supplier is established, that ‘where the effects of a term are specified by mandatory statutory provisions, it is essential that the seller or supplier informs the consumer of those provisions’. 96. It may, however, be observed that the 1993 Directive contains no reference to any such duty. On the contrary, the existence of such a duty is contradicted by the wording of Article 5, which implies that the essential information about the contract must be contained in the contract itself. 97. Moreover, and irrespective of any position which the Court may adopt in respect of the question of whether an autonomous test of the unfairness is enshrined in Article 5, for my part I doubt if Article 5 could properly be interpreted as imposing any wider obligation on the contract drafter to alert consumers regarding the actual or potential impact of court rulings in respect of the interpretation of these mandatory statutory provisions. In this context one might first observe that the fifth and sixth recitals of the directive expressly refer to the fact that, ‘generally speaking, consumers do not know the rules of law which, in Member States other than their own, govern contracts for the sale of goods or services’. (26) This in itself suggests that the Directive proceeds at least tacitly on the basis that whereas consumers are generally not familiar with foreign law, they must be taken to have sufficient knowledge of their own legal system so far as the application of consumer contracts is concerned. 98. Second, if Article 5 of the 1993 Directive had this meaning, it would potentially place a considerable, and, indeed, an uncertain burden on the supplier of the goods or services in question. How, one might ask, could the contract drafter be expected to summarise or explain the legal consequences of a term which has been the subject of a series of potentially conflicting or inconsistent judicial decisions? Such an obligation might be especially onerous in common law systems where much (admittedly not all) of contract law rests not on the provisions of a general code (as is the case in the vast majority of the Member States) or even statute law, but rather by reference to an understanding of a series of judicial decisions. Yet even in the case of civil law systems where judicial decisions are perhaps not quite as central to an understanding of contract law as in the case of the common law systems, such an obligation might well nonetheless prove to be a quite difficult to fulfil. 99. Third, any such interpretation of Article 5 of the 1993 Directive would in practice be unworkable. After all, the 20th recital of the directive envisages that ‘the consumer should actually be given an opportunity to examine all the terms …’. One might ask: is it to be seriously suggested as a result of the decision in Verein für Konsumenteninformation that consumers be given a summary of judicial decisions by potential vendors prior to the conclusion of a consumer contract? Even if this obligation were to be confined to major consumer purchases (27) — such as, as in the present case, the execution of a mortgage in respect of the purchase of a house — the impatience (not to speak of bemusement) which the average consumer might be expected to exhibit in the face of what might well amount to a seminar in basic contract law given by unqualified personnel can only be imagined. In any event, if such a far reaching obligation were to be imposed by the directive, one would have expected that this would have been stated in very clear words. 100. I cannot help thinking, therefore, that it may be necessary for Court to re-visit and, indeed, revise some of the language contained in paragraph 69 of Verein für Konsumenteninformation. 101. It is, admittedly, necessary to draw attention to the facts of this decision. The case concerned an action brought by a consumer group challenging the validity of certain terms contained in standard form electronic sales contracts which the large multinational online retail company, Amazon, had concluded with Austrian consumers. Amazon had no registered office or other establishment in Austria. One of those contractual provisions had simply stated that the contract was governed by Luxembourg law. There was, for example, no reference at all to the relevant provisions of the Rome I Regulation (28) which are designed to protect the consumer in respect of choice of law clauses. Nor did the clause even indicate that the statutory rights afforded to consumers by Austrian law remained unaffected by the choice of Luxembourg law. 102. The conclusion that such a clause was unfair is therefore scarcely surprising. After all, if there is one fundamental leitmotif of the scheme of protection provided for by the Brussels and Rome Regulations, it is that consumers should be protected against the operation of contractual clauses designed to remove them either from the jurisdictions or systems of law with which they are familiar. Viewed thus, a contractual clause providing for the application of Luxembourg law to Austrian consumers without reference to the protection contained in the Rome I Regulation in respect of such a choice of law represents almost a textbook example of an unfair term contained in a consumer contract. 103. I think, therefore, that the comments of the Court made at paragraph 69 of its decision in Verein für Konsumenteninformation must be viewed in the light of those particular circumstances and against the general background of the choice of law provisions — and the protection for consumers which is thereby entailed — which are contained in Articles 4, 6 and 9 of the Rome I Regulation. 104. If, however, the comments of the Court are to be understood as implying a general duty on the part of a seller or supplier to inform a consumer of the existence of mandatory statutory provisions, then I fear that such a statement cannot, with respect, be supported. While this Court does not formally adhere to a system of precedent, nevertheless, given the importance of the decision in Verein für Konsumententinformation, it would, I suggest, be desirable that these comments should at the very least be clarified or perhaps even revised. 105. In accordance with this view, it must be recalled that the contract law of all the Member States contains mandatory statutory provisions, many of which are expressly designed to protect consumers. This is certainly true of the civil law systems to which the vast majority of the Member States adhere, as their domestic codes are replete with provisions of this nature. Yet this is also true of the common law systems. While, as I have already noted, large parts of contract law are derived in common law systems from judicial decisions, there are nonetheless many important examples of where mandatory provisions of this kind have been imposed by statute. 106. Accordingly, the contract laws of the Member States all contain a wide range of mandatory provisions, ranging, for example, from implied terms as to the fitness for purpose of the goods and services supplied on the one hand to special rules concerning the transfer of immovable property on the other. It could not therefore be realistically suggested that consumers need to be informed by the seller or the supplier of each and every such mandatory statutory provision prior to the conclusion of a contract. Since, the decision in Verein für Konsumententinformation is, admittedly, based on the idea that consumers should actually be given an opportunity to examine all the contractual terms in order to be able to influence their substance, (29) it must be assumed that the Court did not require that all applicable mandatory statutory provisions need to be brought to the attention of the consumer, but rather only those which have direct influence on his/her consent. 107. In these circumstances, I suggest that, first, the duty of information set out by the Court in the judgment in Verein für Konsumenteninformation should be understood as limited to the particular hypothesis referred to in that case, namely, that of a term governing the applicable law, the apparently broad language contained in paragraph 69 of the judgment notwithstanding. Such an understanding of the judgment would also be consistent with the fifth and sixth recitals of the 1993 Directive which speak of the need to safeguard consumers who are not generally aware of the law in respect of jurisdictions other than their own. 108. Second, I believe that, one way or another, it would be helpful if the Court were to clarify or even revise the language of paragraph 69 of the judgment in Verein für Konsumenteninformation. In that regard I suggest that the Court should hold that, absent the special circumstances of a foreign choice of law clause such as was at issue in that case, there is no general duty imposed upon vendors or suppliers of goods or services to draw the attention of customers to the existence of mandatory statutory provisions of this nature prior to the execution of the contract. 109. Regarding the question referred, I consider that the existence of any duty to provide information should result from Directive 2005/29 rather than the 1993 Directive and that such a duty should only relate to key information. (30) However, that duty should not go so far as to include an outline of the existing case-law. It follows in turn that, in any case, the existence of conflicting case-law is not in itself sufficient to establish that a contractual term which does not refer to that case-law is unintelligible for the purposes of Article 5 of the 1993 Directive. 5. The fourth question 110. By its fourth question, the referring court asks in essence whether point 1(m) of the Annex to the 1993 Directive should be interpreted as applying to a contractual term that has not been individually negotiated where it authorises the party entering into a contract with the consumer to determine unilaterally whether the consumer’s performance of the contract satisfies the terms of the contract, even before the contracting parties have performed any obligations. 111. In this respect, it should be recalled that point 1(m) of the Annex to the 1993 Directive refers to terms which have the object or effect of giving the seller or supplier the right to determine, inter alia, whether ‘the goods or services’ supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract. It is, however, clear from the use of the words ‘goods or services’ supplied that point 1(m) of the Annex does not refer to all the contractual obligations arising under the contract, but rather only to those which relate to the question of whether the goods or services concerned have been supplied in conformity with the contract. Indeed, if it had been intended that point 1(m) should apply to all and any obligations arising under the contract, words other than those of ‘goods and service’ would presumably have been used by the EU legislature. 112. Accordingly, therefore, a term which ‘authorises the party contracting with the consumer to determine unilaterally whether the consumer’s performance of the contract satisfies the terms of the contract’ does not, as such, fall under point 1(m) of the Annex to the 1993 Directive, although it might in certain circumstances amount to an unfair contract term by virtue of the provisions of Article 3(1) of that directive by reason of the fact that almost by definition it creates a significant imbalance in the parties’ rights and obligations arising under the contract 113. To repeat, therefore, point 1(m) applies only to clauses which give the seller or supplier the exclusive right to determine whether the goods or services supplied are in conformity with the contract: it does not cover the performance of the contract generally. IV. Conclusion 114. In the light of the foregoing consideration, I propose that the Court answer the questions asked by the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal, Hungary) as follows: (1) Point 1(q) of the Annex to the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts is to be interpreted as meaning that it does not amount to a general prohibition in respect of any contractual term which has not been individually negotiated and the purpose or effect of which is to reverse the burden of proof where that burden should, according to the applicable law, naturally rest with the other party. (2) Article 3(1) of Directive 93/13 is to be interpreted as precluding as unfair a contractual term which has the effect of limiting or excluding the consumer’s access to a dispute resolution mechanism. On the contrary, a term which, however, gives the consumer good reason to believe that he/she must perform the contract in its entirety in the manner and to the extent required by the lender even if this is disputed by the consumer is not an unfair contract term for the purposes of Article 3(1) of Directive 93/13. (3) Article 5 of Directive 93/13 is to be interpreted as meaning that the absence of a consistent position among national courts concerning the interpretation of a specific standard term is not sufficient, by itself, to enable the conclusion to be drawn that this term has not been drafted in plain and intelligible language within the meaning of that provision. (4) Point 1(m) of the Annex to Directive 93/13 is to be interpreted as not being applicable to a contract term which has not been individually negotiated and which authorises the party contracting with the consumer to determine unilaterally whether the consumer’s performance of the contract satisfies the terms of the contract. In certain circumstances, however, a clause of this kind might be held to be in breach of the provisions of Article 3(1) of the directive. 1 Original language: English. 2 The Court has jurisdiction to answer a preliminary question referred by a national court, except when the subject matter of the question falls outside its substantive scope of jurisdiction as defined by the first paragraph of Article 267 TFEU, namely the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. 3 Judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 16. 4 Judgment of 1 July 2010, Sbarigia, C‑393/08, EU:C:2010:388, paragraphs 19 to 20. In addition, the Court does not have jurisdiction, pursuant to Article 267 TFEU, to assess the facts and to apply EU law to a particular case. See, for example, judgments of 16 July 2015, CHEZ Razpredelenie BulgariaCHEZ Razpredelenie BulgariaCHEZ Razpredelenie Bulgaria, C‑83/14, EU:C:2015:480, paragraph 104, and of 26 April 2012, Invitel, C‑472/10, EU:C:2012:242, paragraph 22. 5 Judgment of 20 September 2018, OTP Bank and OTP FaktoringOTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 37. 6 The judgments delivered by the Kúria (Supreme Court) which are mentioned by the Bank were all delivered prior to the events in the present proceedings. 7 Judgment of 26 April 2012, Invitel, C‑472/10, EU:C:2012:242, paragraph 34 and case-law cited. 8 Order of 14 November 2013, Banco Popular Español and Banco de ValenciaBanco Popular Español and Banco de ValenciaBanco Popular Español and Banco de Valencia, C‑537/12 and C‑116/13, EU:C:2013:759, paragraph 63. 9 The use of the verb ‘may’ seems more decisive in this regard than the reference made in the 17th recital or in Article 3(3) of the 1993 Directive to the ‘indicative’ nature of that annex. Indeed, and as the Commission has underlined in its Explanatory memorandum of the Re-examined proposal for a Council directive on unfair terms in consumer contracts (COM(93) 11 final) this adjective is ambiguous. Indeed, it could indicate either that the list contained in the Annex to this directive is either incomplete or that it has no particular probative force. 10 Judgment of 7 May 2002, Commission v SwedenCommission v SwedenCommission v SwedenCommission v Sweden, C‑478/99, EU:C:2002:281, paragraph 20. 11 Judgment of 3 June 2010, Caja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de MadridCaja de Ahorros y Monte de Piedad de Madrid, C‑484/08, EU:C:2010:309, paragraph 33. 12 See judgments of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraphs 68 and 69; of 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 58 to 60; and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 56. 13 See, for example, Tenreiro, M., ‘The Community Directive on Unfair Terms and National Legal Systems — The Principle of Good Faith and Remedies for Unfair Terms’ (1995) 3 European Review of Private Law, Issue 2, 273 at 279. 14 For English law, see, for example, Globe Motors Inc v TRW Lucas Variety Electric Steering Ltd [2016] EWCA Civ 396, and for Irish law, Flynn &. Benray v Breccia & McAteer [2017] IECA 7, [2017] 1 ILRM 369, Morrissey v Irish Bank Resolution Corporation [2017] IECA 162. 15 Judgments of 26 April 2012, Invitel, C‑472/10, EU:C:2012:242, paragraph 26, and of 30 May 2013, Asbeek Brusse and de Man GarabitoAsbeek Brusse and de Man GarabitoAsbeek Brusse and de Man GarabitoAsbeek Brusse and de Man GarabitoAsbeek Brusse and de Man Garabito C‑488/11, EU:C:2013:341, paragraph 55. 16 This is also consistent with the word ‘object’ used in the first sentence of the Annex which implies that in some instances certain inferences as to the unbalanced character of a particular term may be drawn simply from its content. 17 This conclusion is neither contradicted by the wording of Article 3(3) of the 1993 Directive, nor by that of the 17th recital. On the one hand, Article 3(3) does not specify why the categories of terms mentioned in the Annex should not automatically be considered unfair. On the other hand, while it follows from the 17th recital of the 1993 Directive that the annexed list of terms is of indicative value because the directive provides for only a minimum level of harmonisation, such a circumstance does not exclude that the EU legislature has nevertheless considered that the minimum nature of this harmonisation should entail the obligation for Member States to consider that the categories of clauses referred to in the Annex are presumed to create an imbalance between parties’ rights and obligations. 18 Judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 68. 19 Judgment of 13 September 2018, Profi Credit PolskaProfi Credit PolskaProfi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 59. 20 For example, the repetition of some expressions or the use of some sophisticated formulation, although grammatically correct and legally accurate, can sometimes give consumers the impression that they cannot contest the validity of a clause, even if they are in fact legally entitled to do so. Requiring, moreover, that consumers must declare before a notary that they were aware of each and every clause of the loan, incorporating this statement into an authentic instrument and then making several references to the existence of a notarial enforcement procedure in the mortgage documentation might perhaps, when combined with some other elements, have the effect of dissuading consumers from exercising their rights. This might especially be so if we take into consideration the common perceptions in some Member States (such as Hungary) where notarial enforcement procedure is commonly used and where a notarial instrument is perceived as an irrevocable commitment. 21 See the preliminary observations. 22 Paragraph 71. 23 I believe that this transparency requirement only concerns Article 4(2) according to which the assessment of the unfair nature of the terms does not relate to the definition of the main subject matter of the contract in so far as those terms are in plain, intelligible language. Indeed, the rationale for the requirement of intelligibility laid down in Article 4(2) is that, in so far as such terms concern the main subject matter of the contract, consumers are expected to consent to the contract in consideration of its object. Thus, unlike the other clauses of an adhesion contract which consumers do not read, terms related to the main subject matter of the contract are not likely to catch the consumer off guard. Therefore, if the requirement of intelligibility in Article 4(2) has the same scope as that referred to in Article 5 of that directive, the consequences of its breach are not the same, as the objective pursued by these two provisions is not identical. In the first case, this objective is to check that the presumption just recalled is correct (and thus that the consumer was indeed in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from the main subject matter of the contract) whereas, for Article 5, as I believe, the objective is to determine, in view of the test enshrined in Article 3(2), how a term must be interpreted. 24 See judgment of 26 February 2015, Matei, C‑143/13, EU:C:2015:127, paragraph 73, and of 20 September 2018, Danko and Danková, C‑448/17, EU:C:2018:745, paragraph 61. 25 See, for example, judgment of 9 July 2015, Bucura, C‑348/14, not published, EU:C:2015:447, paragraph 64. 26 Emphasis supplied. 27 A distinction which, in any event, is not drawn by the directive itself. 28 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6). 29 See paragraphs 63 and 68. 30 See, by analogy, judgment of 7 September 2016, Deroo-Blanquart, C‑310/15, EU:C:2016:633, paragraph 48.