Keywords

Summary



Keywords

1. Preliminary rulings – Reference to the Court – Obligation for a national court initiating a preliminary reference procedure simultaneously to inform the Minister of Justice – No effect

(Art. 267 TFEU; Statute of the Court of Justice, Art. 23)

2. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 – Unfair term under Article 3 – Concept – Jurisdiction clause

(Council Directive 93/13, Art. 3(1))

3. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13 – Obligation for the national court to examine ex officio whether a term of a contract submitted for its assessment is unfair – Scope

(Council Directive 93/13, Art. 3)

Summary

1. The first paragraph of Article 23 of the Statute of the Court of Justice of the European Union does not preclude a provision of national law that provides that the court that initiates a preliminary reference procedure is at the same time to inform, of its own motion, the Minister with responsibility for Justice in the Member State concerned.

It does not appear that such an obligation may be considered to interfere with the dialogue between the courts set up by Article 267 TFEU. The obligation for the national courts of the Member State concerned to inform the Minister for Justice when a decision to refer a question to the Court of Justice is sent does not constitute a condition for the reference. Thus, it can have no effect on the right of such courts to make a reference for a preliminary ruling or prejudice the prerogatives conferred on those courts under Article 267 TFEU. Moreover, it does not appear that any breach of that obligation to inform has legal implications liable to encroach on the procedure provided for in Article 267 TFEU, when no evidence has been adduced from which it might be inferred that the national courts of the Member State concerned might be deterred, by such an obligation to inform, from referring a question to the Court of Justice for a preliminary ruling.

(see paras 31-35, operative part 1)

2. Article 267 TFEU must be interpreted as meaning that the jurisdiction of the Court of Justice of the European Union extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 on unfair terms in consumer contracts and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of that directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case.

The unfairness of a contractual term is to be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending its conclusion, including the fact that a term contained in a contract concluded between a consumer and a seller or supplier is included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business.

(see paras 42-44, operative part 2)

3. The national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in the contract which is concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the ambit of Directive 93/13 on unfair contract terms in consumer contracts and, if it does, assess of its own motion whether such a term is unfair.

In order to safeguard the effectiveness of the consumer protection intended by the European Union legislature, in a situation in which there is an imbalance between the consumer and the seller or supplier that may be corrected only by positive action, unconnected with the actual parties to the contract, the national court must, at the first stage of its examination, in all cases and whatever the rules of its domestic law, determine whether or not the contested term was individually negotiated between a seller or supplier and a consumer.

As regards the second stage of that examination, a term included, without being individually negotiated, in a contract between a consumer and a seller or supplier and conferring exclusive jurisdiction on a court situated close to the registered office of the seller or supplier, both geographically and in terms of transport links, must be regarded as unfair within the meaning of Article 3 of the Directive, in so far as it causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

(see paras 48, 51-53, 56, operative part 3)