Opinion of the Advocate General — ECLI:EU:C:2011:806
Date: 2011-12-06
Language of the case: Hungarian
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Hungary

Summary of conclusions 95. The essential conclusions from the above examination of the questions referred for a preliminary ruling can be summarised briefly as follows. 96. Examination has shown that Directive 93/13 not only permits the adoption of collective actions in national legal systems but regards it as an ‘effective’ and ‘appropriate’ means of collective legal protection under Article 7(2) ‘to prevent the continued use’ of unfair terms in contracts. (61) 97. Although the general prescriptions set out in Article 7 of Directive 93/13 and the minimum harmonisation approach adopted by the EU legislature allow the Member States wide discretion in the organisation of their procedural law, certain requirements must be met in order to ensure that the legislative objective of consumer protection is achieved. This includes the requirement that once a contract term has been classified as unfair it continues to be ‘not binding’ on the consumers concerned under Article 6(1). (62) A provision that gives legal effect to national courts’ findings of unfairness of a term not only for the parties to the proceedings but to all persons (erga omnes) who concluded contracts with the seller or supplier using the term meets this objective in any event. (63) Actions for injunctions, the essential characteristics of which are governed by Directive 2009/22, are a procedural necessity for achieving the objective of Directive 93/13. (64) 98. Furthermore, I have established that although claims by consumers for the refund of costs and expenses charged as a result of the use of an unfair contract term are not governed by Directive 93/13, that directive does not in principle preclude a national provision in that regard. (65) Lastly, the examination I have conducted has shown that although there are compelling indications for assuming that the contested term corresponds to the type of term described in point 1(j) of the annex and meets the criteria for being classified as unfair within the meaning of Article 3(1) of Directive 93/13, it remains for the national court to rule definitively on the unfair nature of the term. (66) If the term is ruled to be unfair, Directive 93/13 does not prevent its being declared invalid ipso jure under national law. (67) VII – Conclusion 99. In the light of the foregoing considerations, I propose that the Court’s answer to the questions referred by the Pest Megyei Bíróság should be as follows: (1) Article 6(1) and Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts are to be interpreted as meaning that they do not preclude a national provision under which an unfair contract term used in contracts by a particular seller or supplier and which a national court has ruled, in an action brought in the public interest by a body appointed by law and competent for that purpose, to be invalid or not binding has no legal effect in any consumer contract concluded by that seller or supplier. (2) Article 6(1) and Article 7(1) and (2) of the directive grant consumers who are not party to proceedings no right to the refund of costs resulting from the unfairness of a term if the unfairness of a term has been determined in other proceedings not affecting them. However, Article 8 of the directive does not preclude a national provision granting consumers a right to refund in such a case. (3) A contract term in which a seller or supplier provides for a unilateral amendment of the general business conditions without explicitly describing the method by which prices vary or giving valid reasons in the contract falls within the category described in point 1(j) of the annex referred to in Article 3(3) of the directive. However, it remains for the national court to assess on a case-by-case basis whether the term in question is unfair. The directive does not preclude a national provision under which such a term is invalid ipso jure. 1 – Original language: German. Language of the case: Hungarian. 2 – Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). 3 – Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64). Since the directive was published in the Official Journal of the European Union on 22 November 2011, the Member States now have until 13 December 2013 to incorporate it into national law. Under Article 32 of this directive, which is inserted into Directive 93/13 as Article 8a, the Member States have an obligation to inform the Commission of the adoption of specific national provisions in certain fields, in particular as regards the extension of the scope of the unfairness assessment under Article 4(2) of Directive 93/13 and the introduction of national lists of contractual terms deemed unfair. The adoption of the directive on consumer rights coincides with the submission on 11 October 2011 of a Commission proposal for a regulation of the European Parliament and of the Council on a common European sales law (COM(2011) 635 final). This proposal provides for the European sales law to be applied optionally to cross-border sales contracts. Chapter 8 of the document (Articles 79 to 86 – ‘Unfair contract terms’) sets out provisions on unfair contract terms both between an entrepreneur and a consumer which broadly correspond to those of Directive 93/13, and between entrepreneurs (with regard to developments in the field of private consumer law, see Wendehorst, C., ‘Auf dem Weg zu einem zeitgemäßen Verbraucherprivatrecht: Umsetzungskonzepte’, Neuordnung des Verbraucherprivatrechts in Europa? — Zum Vorschlag einer Richtlinie über Rechte der Verbraucher, Vienna, 2009, p. 154 et seq., and in the field of international private law, see Ferrari, F., Ein neues Internationales Vertragsrecht für Europa, Gottmadingen, 2007, p. 57). 4 – See Joined Cases C‑240/98 to C‑244/98 Océano Grupo Editorialand Salvat Editores [2000] ECR I‑4941, paragraph 25, and Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 25. 5 – See Mostaza Claro, cited in footnote 4 above, paragraph 36, and Case C‑243/08 Pannon GSM [2009] ECR I‑4713, paragraph 25. 6 – See Océano Grupo Editorial and Salvat Editores, cited in footnote 4 above, paragraph 27; Mostaza Claro, cited in footnote 4 above, paragraph 26; and Case C‑40/08 Asturcom Telecomunicaciones [2009] ECR I‑9579, paragraph 31. 7 – Ibid., paragraph 32. 8 – Case C‑473/00 Cofidis [2002] ECR I‑10875, paragraph 32, and Mostaza Claro, cited in footnote 4 above, paragraph 27. 9 – Cofidis, cited in footnote 8 above, paragraph 33, and Mostaza Claro, cited in footnote 4 above, paragraph 28. 10 – Ebers, M., ‘Unfair Contract Terms Directive (93/13)’, EC Consumer Law Compendium — Comparative Analysis (eds Hans Schulte-Nölke, Christian Twigg-Flesner and Martin Ebers), p. 422 et seq., gives an overview of the various instruments at national level, which shows that all the Member States provide for court procedures to prohibit unfair terms. In a number of Member States, the emphasis is on administrative proceedings, while in all Member States it is possible to pursue collective actions. 11 – See Micklitz, H.-W., ‘AGB-Gesetz und die EG-Richtlinie über missbräuchliche Vertragsklauseln in Verbraucherverträgen’, Zeitschrift für Europäisches Privatrecht, 1993, p. 529, who points out that the EU legislature did not intend to prescribe the form that verification should take. The Member States were to be free to decide whether they entrusted verification to administrative authorities or to consumer organisations, provided only that verification was effective and appropriate. A similar view is taken by Pfeiffer, T., in Das Recht der Europäischen Union — Kommentar (eds Eberhard Grabitz and Meinhard Hilf), Vol. IV, A5, Art. 7, paragraph 14, p. 3, who states that the Member States were to decide whether the in abstracto verification procedure should be judicial or administrative. An appropriate level of effectiveness is required, however. Damm, R., ‘Europäisches Verbrauchervertragsrecht und AGB-Recht’, Juristenzeitung, 1994, p. 175, interprets Article 7(2) of Directive 93/13 as meaning that the decision whether the inabstracto verification of unfair terms is carried out in the context of judicial or administrative proceedings is one for national law. The author points out, however, that EU law lays down not only that there be the option of collective actions but also that such actions be efficient in that it requires adequate and effective means to be employed to prevent the use of unfair terms. 12 – In all the Member States of the European Union, it is possible to bring a collective action against unfair terms. Almost all the Member States provide at least for an injunction against persons using or recommending unfair terms. As a rule, it is also possible to apply to the court for interim measures in urgent cases. Some Member States also provide for actions for damages. In Germany the history of collective actions goes back more than a century. The right for trade associations to bring an action was first enshrined in the 1896 version of the Gesetz gegen den unlauteren Wettbewerb (Law on unfair competition). Some 80 years later this collective action by consumer and business associations was incorporated into the law on GBC, under which authorised bodies such as consumer associations and chambers of industry and commerce may bring an action for an injunction against a person who uses provisions that are invalid under Paragraphs 307 to 309 of the Bürgerliches Gesetzbuch (Civil Code) or who recommends their use in contracts, and in the case of recommendations they may also apply for withdrawal (Paragraphs 1 and 3 of the Unterlassungsklagengesetz (Law on injunctions)). In France consumer associations have had the right to bring collective actions since 1988, alongside provision for administrative and judicial verification in individual disputes (Article L. 421‑1 et seq. of the code de la consommation (Consumer Code)). They can apply for an injunction (Articles L. 421‑2 and L. 421‑6), and they can also claim collective damages if an action by the user has harmed collective consumer interests (Articles L. 421‑1 and 421‑7). In Poland provisions for the in abstracto verification of terms by means of collective actions were introduced into civil law for the first time with the transposition of Directive 93/13 (Article 479 et seq. of the Civil Code). Actions may be brought not only by consumer associations, local consumer ombudsmen and the president of the Office for the Protection of Competition and Consumers but also by any person who could have signed the contract in the light of the offer from the user of the term. In the United Kingdom consumer associations are entitled to lodge complaints and the consumer association bringing the complaint is entitled to initiate proceedings (Regulations 11 and 12 of the Unfair Terms in Consumer Contracts Regulations 1999). In Spain consumer associations also have the power to bring proceedings (Article 12 et seq. of Ley 7/1998 sobre condiciones generales de la contratación (Law 7/1998 on general contract terms)), which allows them to apply for injunctions, withdrawal and damages. Since 2001 consumer organisations have been able to seek damages under Spanish civil law for a group of consumers who cannot be identified individually. Austria also provides for collective actions to protect consumers (Paragraph 28 et seq. of the Konsumentenschutzgesetz (Law on consumer protection)). The consumer and business associations named in the Law may apply for an injunction in the event of an infringement of consumer protection law. The legal situation in Italy is similar (Article 37 of the Codice del consumo (Consumption Code)). In Slovenia any organisation with legal personality that has been founded to protect the rights and interests of consumers and has been in actual operation for at least one year may bring proceedings to prevent an undertaking from using unlawful GBC or to have contracts or individual provisions or GBC they contain declared invalid (Article 74 et seq. of the Zakon o varstvu potrošnikov (Law on consumer protection). In Portugal consumers and consumer associations that are not directly affected are entitled to bring actions for injunctions and damages (Article 13 of Lei no 24/96 de defesa do consumidor (Law No 24/96 on consumer protection)). 13 – Case C‑372/99 [2002] ECR I‑819. 14 – Ibid., paragraphs 14 and 15. 15 – To that effect, see Paisant, G., ‘Les limites de l’action collective en suppression de clauses abusives’, La Semaine Juridique – Édition Générale, No 18, 2005, II‑10057, who refers to the preventive nature of collective actions. According to the author, the purpose of the collective action is to prevent new consumers from falling victim to contract terms that have been deemed unfair. 16 – See Commission v Italy, cited in footnote 13 above, paragraphs 14 and 15, in which the Court ascribes a deterrent effect to the collective action by referring inter alia to the ‘deterrent nature’ and ‘dissuasive purpose of the measures to be adopted’. 17 – Del Chiappa, P., ‘Le associazione, la rappresentanza e la partecipazione dei consumatori’, I diritti dei consumatori (ed. Guido Alpa), Vol. II, Turin, 2009, p. 726, and ‘La tutela individuale e collettiva dei consumatori’, I diritti dei consumatori (ed. Guido Alpa), Vol. I, Turin, 2009, p. 146, and Fornage, A.-C., La mise en oeuvre des droits du consommateur contractant (eds Andreas Furrer and others), Brussels, 2011, p. 378, make apposite reference in this regard. If the cost-benefit ratio of legal action is not to the consumer’s advantage, he will usually refrain from enforcing his rights in court. The authors consider that individual legal protection is therefore necessary but not sufficient to ensure consumer protection over the long term. 18 – See Case C‑70/03 Commission v Spain [2004] ECR I‑7999 with regard to the rule on interpretation set out in Article 5 of Directive 93/13 and the distinction made therein as between actions involving an individual consumer and actions for cessation which involve persons or organisations representative of the collective interest of consumers. The Court based that distinction on the different aims pursued by those actions. In the former case, the courts or competent bodies are required to make an assessment in concreto of the unfair character of a term contained in a contract which has already been concluded, while in the latter case it is their task to assess in abstracto the unfair character of a term which may be incorporated into contracts which have not yet been concluded. 19 – See Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid [2010] ECR I‑4785, paragraphs 28 and 29. 20 – Pfeiffer, T., op. cit. (footnote 11), Article 7, paragraph 20, p. 5. 21 – See Ulmer, P., ‘Zur Anpassung des AGB-Gesetzes an die EG-Richtlinie über missbräuchliche Klauseln in Verbraucherverträgen’, Europäische Zeitschrift für Wirtschaftsrecht, 1993, p. 337. 22 – See Kapnopoulou, E., Das Recht der missbräuchlichen Klausel in der Europäischen Union, Tübingen, 1997, p. 150 et seq. 23 – Examination of the genesis of Directive 93/13 may help achieve a better understanding of this term. The proposals for a directive had still stated that unfair terms were ‘void’. Given the difficulties associated with the highly specific national provisions behind this legal concept in the Member States, some resistance was expressed during discussion in the Council. In the common position, the Council therefore decided to adopt the less legalistic wording that unfair clauses ‘shall not bind the consumer’. The precise legal classification of the consequences was to be left to the Member States to decide in the context of their legal system. This definition was clearly still not ‘neutral’ enough, for the European Parliament suggested the new wording ‘not binding on the consumer’, which the Commission incorporated into its re-examined proposal and which the Council accordingly adopted in the final version of the directive (see Ponick, A., Die Richtlinie über missbräuchliche Klauseln in Verbraucherverträgen und ihre Umsetzung im Vereinigten Königreich, Münster, 2003, p. 68). 24 – See Pfeiffer, T., op. cit. (footnote 11), Article 6, paragraph 1, p. 1, who interprets Article 6(1) of Directive 93/13 as meaning that it is left to the Member States to determine the legal definition of the non-binding nature of unfair terms. 25 – On the origin of European civil law, see, for example, Rainer, M., Introduction to Comparative Law, Vienna, 2010, p. 27 et seq. 26 – It is common to the rules of procedure of most of the Member States that a judicial decision on the unfairness of a term in response to an actual contract dispute does not necessarily prevent the continued use of that term, for example because such a decision has legal effect only between the parties. However, some national legal systems derogate from this principle when it comes to the protection of consumers from unfair contract terms, such as in Poland, Hungary and Slovenia, which confer erga omnes effect on judicial decisions (see Ebers, M., op. cit. (footnote 10), p. 431). For the protection of consumers, some Member States have taken measures to prevent sellers or suppliers from using similar terms that may not be subject to the legal effect of a judicial decision. For example, in the United Kingdom under Regulation 12(4) of the Unfair Terms in Consumer Contracts Regulations 1999 an injunction may relate not only to a particular contract term but to any similar term or terms having like effect. Similarly, in Cyprus actions for injunctions may be brought not only against an individual seller or service provider but also against a group of entrepreneurs who use or recommend similar terms, irrespective of whether they operate in the same or another field of business. Hence, in these countries it is possible to prevent entrepreneurs from circumventing judicial decisions by replacing the contested term by similar unfair terms (see Ebers, M., op. cit. (footnote 10), p. 432). 27 – See point 40 of this Opinion. 28 – Kapnopoulou, E., op. cit. (footnote 22), p. 161, notes that terms declared in a collective action to be unfair to the average consumer cannot, as a rule, subsequently continue to be used. 29 – See Augsberg, I., ‘Europäisches Verwaltungsorganisationsrecht und Vollzugsformen’, Verwaltungsrecht der Europäischen Union (ed. Jörg Philipp Terhechte), Baden-Baden, 2011, Section 6, paragraph 21, p. 219. In the view of Galetta, D.‑U., Procedural Autonomy of EU Member States: Paradise Lost?, Heidelberg, 2011, p. 11, the procedural autonomy of the Member States can be attributed to the fact that the European Union has no powers in the field of procedural law. Nevertheless, the principles of the effectiveness and direct effect of EU law enable the EU legislature to draw on the procedural law of the Member States in order to achieve its objectives. 30 – To that effect, see Pfeiffer, T., op. cit. (footnote 11), Article 7, paragraph 3, p. 2. 31 – Cited in footnote 6 above. 32 – Ibid., paragraph 38. 33 – See Paisant, G., op. cit. (footnote 15), II‑10057, who refers to the requirement for effectiveness set out in Article 7(1) and (2) of Directive 93/13. 34 – See Pfeiffer, T., op. cit. (footnote 11), Article 7, paragraph 3, p. 2. 35 – See Case 32/62 Alvis v Council [1963] ECR 49, 55; Case 136/79 National Panasonic v Commission [1980] ECR 2033, paragraph 21; and Case C‑48/96 P Windpark Groothusen v Commission [1998] ECR I‑2873, paragraph 47. 36 – See Pfeiffer, T., op. cit. (footnote 11), Article 7, paragraph 9, p. 3. 37 – The language versions in German (‘im Hinblick auf’), French (‘en vue de’), Spanish (‘con vistas a’), Portuguese (‘com vista a’) and Danish (‘med henblik på’). 38 – In its Report on the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (COM(2000) 248 final, p. 24), the Commission observes that actions for injunctions are part of the traditional approach to eliminating unfair terms. Fornage, A.-C., op. cit. (footnote 17), p. 380, also holds, with reference to the wording of Article 7 and the 23rd recital in the preamble to Directive 93/13, that the Member States are required to permit consumer associations to bring actions for injunctions in the interest of consumers. 39 – OJ 2009 L 110, p. 30. 40 – Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests (OJ 1998 L 166, p. 51). 41 – To that effect, see Stuyck, J., ‘Public and Private Enforcement in Consumer Protection: General Comparison EU-USA’, New Frontiers of Consumer Protection – The Interplay Between Private and Public Enforcement, Oxford, 2009, p. 78. 42 – Cited in footnote 19 above. 43 – Ibid., paragraph 34. 44 – See Caja de Ahorros y Monte de Piedad de Madrid, cited in footnote 19 above, paragraph 32. 45 – See Pannon GSM, cited in footnote 5 above, paragraph 37, and Case C‑237/02 Freiburger Kommunalbauten [2004] ECR I‑3403, paragraph 19. 46 – As is apparent from the 17th recital in the preamble to Directive 93/13, the annexed list of terms can be of indicative value only and, because of the minimal character of the directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws. 47 – See Pannon GSM, cited in footnote 5 above, paragraph 38, and Freiburger Kommunalbauten, cited in paragraph 45 above, paragraph 20. 48 – See Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 20, and Freiburger Kommunalbauten, cited in footnote 45 above, paragraph 20. 49 – See Freiburger Kommunalbauten, cited in footnote 45 above, paragraph 25; Pannon GSM, cited in footnote 5 above, paragraph 43; Mostaza Claro, cited in footnote 4 above, paragraph 23; and Case C‑137/08 Pénzügyi Lízing [2010] ECR I‑10847, paragraphs 43 and 44. 50 – Cited in footnote 49 above, paragraph 44. 51 – See in Freiburger Kommunalbauten, cited in footnote 45 above, paragraph 22; Pannon GSM, cited in footnote 5 above, paragraph 42; Mostaza Claro, cited in footnote 4 above, paragraph 22; and Pénzügyi Lízing, cited in footnote 49 above, paragraphs 43 and 44. 52 – See page 3 of the statement of defence of the defendant in the main proceedings of 4 May 2009. 53 – See Pfeiffer, T., op. cit. (footnote 11), Annex, paragraph 91, p. 17. 54 – To that effect, see Ebers, M., op. cit. (footnote 10), p. 405, who argues that the concept of absolute invalidity satisfies the requirements of case-law, whereas relative invalidity does not. In his view, other concepts, such as protective nullity, appear to accord with the case-law of the Court of Justice, provided the consumer is also protected if he fails to complain about the unfairness of the term, either because he is ignorant of his rights or even because he is reluctant to assert those rights (on the principle of protective nullity under Italian civil law, see Schurr, F., Handbuch Italienisches Zivilrecht (eds Bernhard Eccher, Francesco Schurr and Gregor Christandl), Vienna, 2009, p. 323, paragraph 3/437). 55 – Cited in footnote 4 above. 56 – Ibid., paragraph 26. 57 – Cited in footnote 5 above. 58 – Ibid., paragraph 24. 59 – Opinion of 6 July 2010 (judgment cited in footnote 49 above), point 105. 60 – See Heinig, J., ‘Die AGB-Kontrolle von Gerichtsstandsklauseln – zum Urteil Pannon des EuGH’, Europäische Zeitschrift für Wirtschaftsrecht, 2009, p. 885, who interprets the findings of the Court of Justice in this judgment as meaning that it is compatible with the obligation for the court to undertake an examination of its own motion only if the term becomes ineffective under Article 6(1) of Directive 93/13 ipso jure and the consumer does not need to bring proceedings. See also Borges, G., ‘AGB-Kontrolle durch den EuGH’, Neue Juristische Wochenschrift, 2001, p. 2061. 61 – See points 39 to 43 of this Opinion. 62 – Ibid., point 51. 63 – Ibid., point 61. 64 – Ibid., point 66 et seq. 65 – Ibid., point 76. 66 – Ibid., point 87. 67 – Ibid., point 94.