Opinion of the Advocate General — ECLI:EU:C:2014:2403
Date: 2014-11-27
Language of the case: Dutch
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of that debate in the Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (presented by the Commission) COM(95) 520 final, p. 2 (and the documents cited there) (OJ 1996 C 307, p. 8). Article 6(1) of Directive 93/13 states: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’ 29 See, for example, judgment in Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 32. 30 See, for example, judgment in Kušionová, EU:C:2014:2189, paragraph 48 and the case-law cited. 31 See, for example, judgment in Kušionová, EU:C:2014:2189, paragraph 48 and the case-law cited. 32 See, for example, judgment in VB Pénzügyi Lízing, EU:C:2010:659, paragraph 48 and the case-law cited. 33 Judgment in Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 26. 34 Judgment in Cofidis, C‑473/00, EU:C:2002:705, paragraph 38. 35 Judgment in Kušionová, EU:C:2014:2189, paragraph 56 and the case-law cited (the latter concerned a situation in which the consumer had not brought any legal proceedings in order to assert his rights). 36 Opinion of Advocate General Kokott in Duarte Hueros, EU:C:2013:128, points 43, 44, 47 and 48. 37 Article 2(3) of Directive 1999/44. 38 Article 2(2) of Directive 1999/44. See also recital 7 in the preamble. 39 Recital 8 in the preamble suggests it is not. 40 See points 80 to 90 below. 41 Compare with, for example, the order of reasoning in the judgment in VB Pénzügyi Lízing, EU:C:2010:659, paragraph 49. 42 See judgment in Duarte Hueros, EU:C:2013:637, paragraph 25. 43 In my view that obligation applies irrespective of Article 9, which requires a Member State to take the appropriate measures to inform consumers of national law transposing Directive 1999/44 and, where appropriate, to encourage professional organisations to inform consumers of their rights; and of the fact that the contract and other elements specific to a particular case might inform the consumer of his rights, especially where national and/or EU law requires such information to be included in the contract or communicated to the consumer prior to its conclusion. 44 I accept that this position may also have implications for other parts of EU law which similarly overtly protect a weaker party in a contractual relationship with another stronger party or with a public body. An obvious example here is EU law protecting workers in both types of relationship. 45 See, in the context of individual provisions on unfair contract terms, judgment in Océano Grupo Editorial and Salvat Editores, EU:C:2000:346, paragraph 26. In other contexts, see judgments in Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 28 and the case-law cited, and Rampion and Godard, C‑429/05, EU:C:2007:575, paragraph 65. 46 See, for example, as regards Article 6 of Directive 93/13, judgments in Jőrös, EU:C:2013:340, paragraph 41 and the case-law cited, and Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 49. 47 Indeed, that might be the case with respect to distinct elements of Article 5 of Directive 1999/44 which I discuss in the context of questions 5 and 6. 48 See also judgment in Rampion and Godard, EU:C:2007:575, paragraph 65. 49 See, for example, judgment in Aziz, C‑415/11, EU:C:2013:164, paragraph 46 and the case-law cited. 50 See recitals 22 and 24 in the preamble to and Article 8 of Directive 1999/44. 51 See recital 22 in the preamble to and Article 8(2) of Directive 1999/44. 52 See recital 6 in the preamble to Directive 1999/44. 53 See points 19 to 23 above. 54 A similar distinction appears to be made in other language versions of Article 5 of Directive 1999/44. 55 COM(95) 520 final, cited in footnote 28, p. 14. 56 COM(95) 520 final, cited in footnote 28, p. 14. 57 As a member of the bench put it during the questions at the hearing: a car that is in conformity with its purpose does not spontaneously combust. 58 See also, for example, in the context of consumer credit, Opinion of Advocate General Wahl in CA Consumer Finance, C‑449/13, EU:C:2014:2213, point 37. 59 That was also the intention of the Commission in proposing this provision: see COM(95) 520 final, cited in footnote 28, p. 12. 60 See, for example, judgment in Arcor, C‑55/06, EU:C:2008:244, paragraph 191 and the case-law cited.