Keywords

Summary



Keywords

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract submitted to it for assessment is unfair — Obligation to invite the parties to submit their observations

(Council Directive 93/13, Arts 6(1) and 7(1))

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Assessment of unfair nature by the national court — Obligation to take account of all of the other terms of the contract (Council Directive 93/13, Arts 3(1) and 4(1))

Summary

1. Articles 6(1) and 7(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that the national court which has found of its own motion that a contractual term is unfair is not obliged, in order to be able to draw the consequences arising from that finding, to wait for the consumer, who has been informed of his rights, to submit a statement requesting that that term be declared invalid. However, the principle of audi alteram partem , as a general rule, requires the national court which has found of its own motion that a contractual term is unfair to inform the parties to the dispute of that fact and to invite each of them to set out its views on that matter, with the opportunity to challenge the views of the other party, in accordance with the formal requirements laid down in that regard by the national rules of procedure.

It is true that the full effectiveness of the protection provided for by the directive requires that the national court which has found of its own motion that a term is unfair should be able to establish all the consequences of that finding, without waiting for the consumer, who has been fully informed of his rights, to submit a statement requesting that that term be declared invalid. However, in implementing EU law, the national court must also respect the requirements of effective judicial protection of the rights that individuals derive from EU law, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. Among those requirements is the principle of audi alteram partem , as part of the rights of defence and which is binding on that court, in particular when it decides a dispute on a ground that it has identified of its own motion.

That obligation cannot be regarded as being, in itself, incompatible with the principle of effectiveness which governs the implementation, by the Member States, of rights conferred by EU law since that principle must be applied by taking into account, inter alia, the basic principles of the domestic judicial system, such as protection of the rights of the defence, of which the principle of audi alteram partem is an element.

Furthermore, that opportunity afforded to the consumer to set out his views on that point also fulfils the obligation on the national court to take into account, where appropriate, the intention expressed by the consumer when, conscious of the non-binding nature of an unfair term, that consumer states nevertheless that he is opposed to that term being disregarded, thus giving his free and informed consent to the term in question.

(see paras 28, 29, 33, 35, 36, operative part 1)

2. Under Article 3(1) of Directive 93/13 on unfair terms in consumer contracts, a term is considered to be 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. Pursuant to Article 4(1) of the same directive, that assessment must have regard to the nature of the services for which the contract was concluded as well as to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent. Therefore, the national court must, in order to determine whether the contractual term on which the claim brought before it is based may be unfair, take account of all of the other terms of the contract.

(see paras 40, 41, operative part 2)