Case C-453/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o. (Consumer protection — Consumer credit agreement — Incorrect statement of annual percentage rate of charge — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)
Date: 2012-03-15
Institutions: Court of Justice
Subjects: advertising malpractice, consumer protection, interest, trade credit, unfair terms of contract








C_2012133EN.01000701.xml










5.5.2012   


EN


Official Journal of the European Union


C 133/7





Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o.
(Case C-453/10) (1)

(Consumer protection - Consumer credit agreement - Incorrect statement of annual percentage rate of charge - Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)
2012/C 133/11
Language of the case: Slovak

Referring court

Okresný súd Prešov

Parties to the main proceedings


Applicants: Jana Pereničová, Vladislav Perenič

Defendant: SOS financ, spol. s r. o.

Re:

Reference for a preliminary ruling — Okresný súd Prešov — Interpretation of Articles 4(1) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), and of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — Consumer credit contract stipulating a usurious interest rate — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole.

Operative part of the judgment







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, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer.










2.


A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is for the national court to ascertain whether that is the case in the main proceedings. A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded.






(1)  OJ C 328, 4.12.2010.