Case C-208/21: Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie (Poland) lodged on 23 March 2021 — K.D. v Towarzystwo Ubezpieczeń Ż S.A.
Date: 2021-03-23
Institutions: Court of Justice
Subjects: advertising malpractice, consumer protection, insurance contract, marketing, termination of a contract, unfair terms of contract








C_2021289EN.01002301.xml










19.7.2021   


EN


Official Journal of the European Union


C 289/23






Request for a preliminary ruling from the Sąd Rejonowy dla Warszawy-Woli w Warszawie (Poland) lodged on 23 March 2021 — K.D. v Towarzystwo Ubezpieczeń Ż S.A.
(Case C-208/21)
(2021/C 289/32)
Language of the case: Polish

Referring court

Sąd Rejonowy dla Warszawy-Woli w Warszawie

Parties to the main proceedings


Applicant: K.D.

Defendant: Towarzystwo Ubezpieczeń Ż S.A.

Questions referred







1.


Must Article 3(1) of Directive 2005/29/EC, (1) in conjunction with Article 2(d) thereof, be interpreted as concentrating the meaning of the term ‘unfair commercial practice’ only around the circumstances relating to the conclusion of a contract and the presentation of the product to the consumer, or must the formulation, by the trader who is creator of the product, of the misleading standard contract which underlies the functioning of the sales offering prepared by another trader, and is therefore not directly related to the marketing of the product, also be understood as falling with the scope of the directive and thus the term ‘unfair commercial practice’?










2.


If the first question is answered in the affirmative, must it be concluded that the trader responsible under Directive 2005/29/EC for the use of an unfair commercial practice is the trader responsible for formulating the misleading standard contract or the trader who, on the basis of that standard contract, presents the product to the consumer and is directly responsible for marketing the product, or must it be concluded that both traders bear responsibility under Directive 2005/29/EC?










3.


Does Article 3(2) of Directive 2005/29/EC preclude a rule of national law (interpretation of national law), which confers on the consumer the right to apply for annulment by a national court of a contract concluded with a trader, with mutual refund of payments, where the consumer’s declaration of intent to conclude the contract was made under the influence of the trader’s unfair commercial practice?










4.


If the third question is answered in the affirmative, must it be held that the appropriate legal basis for assessing the action of a trader, consisting in the use of unintelligible and unclear standard contract in relation to a consumer, will be Directive 93/13, (2) and consequently must the requirement that contractual terms be drafted in plain, intelligible language, laid down in Article 5 of Directive 93/13, be interpreted as meaning that in unit-linked assurance contracts concluded with consumers this requirement is met by a non-individually negotiated contractual term which does expressly define the scale of the investment risk during the term of the assurance contract and merely provides information about the possibility of the loss of part of the first premium paid and on-going premiums in the event of withdrawal from the assurance before the end of the liability period?






(1)  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.

(2)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ 1993 L 95, p. 29.