62021CO0379_INF
Order of the Court (Ninth Chamber) of 17 January 2023 –TBI Bank
(Case C‑379/21) (
1
)
(Reference for a preliminary ruling – Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice – Consumer credit – Directive 93/13/EEC – Article 6(1) – Unfair terms – Refusal to issue an immediate order for payment in the event of a claim based on an unfair term – Consequences relating to the unfairness of a contractual term – Directions from a higher court not observing those consequences)
1.
Questions referred for a preliminary ruling – Jurisdiction of the Court – Limits – General or hypothetical questions – Abstract and purely hypothetical question with respect to the subject matter of the dispute in the main proceedings – Inadmissibility
(Art. 267 TFEU)
(see paragraphs 23, 25, 26)
2.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Order for payment procedure – Consumer not taking part in the proceedings until the order for payment is issued – Obligation for the national court to draw all the consequences arising from a finding that a term is unfair of its own motion – Application for an order for payment based in part on that term – Partial dismissal of the application by the national court – Conditions – Continued existence of the contract – Distinction between claims arising from the unfair term and the rest of the claim – A matter for the national court to ascertain
(Council Directive 93/13, Art. 6(1))
(see paragraphs 29-31, 33-35, operative part 1)
3.
Consumer protection – Unfair terms in consumer contracts – Directive 93/13 – Finding that a term is unfair – Scope – Obligation for the national court to uphold the claim for payment in its entirety and to issue an immediate order – Obligation for that judge to disapply directions contrary to EU law issued by a higher court
(Council Directive 93/13, Art. 6(1))
(see paragraphs 37-40, operative part 2)
Operative part
1.
Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts,
must be interpreted as meaning that the national court, on receiving an application for an order for payment and where the debtor-consumer does not take part in the proceedings until the order for payment is issued, is obliged to disapply ex officio an unfair term in the consumer credit agreement concluded between that consumer and the seller or supplier concerned, on which a part of the claim relied on is based. In that case, that court has the option of rejecting that application in part, provided, first, that that agreement can continue in existence without any further amendment, revision or supplementation, which it is for the court to verify, and second, that the claims arising from that term may be distinguished from the rest of the application.
2.
Article 6(1) of Directive 93/13
must be interpreted as precluding a national court, called upon to decide a case referred back to it by a higher court, from being bound, in accordance with national procedural law, by legal assessments or directions from that higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those assessments or directions fail to acknowledge the legal consequences arising from the unfair nature of a term of a consumer credit agreement.
(
1
)	OJ C 368, 13.9.2021.