C 408/16
EN
Official Journal of the European Union
24.10.2022
Parties to the main proceedings Applicants: E.K., S.K. (C 80/21), B.S., W.S. (C-81/21), B.S., Ł.S. (C-82/21)
Defendants: D.B.P. (C-80/21), M. (C-81/21), M. (C-82/21)
Operative part of the judgment 1.
Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
must be interpreted as:
precluding national case-law according to which the national court may declare unfair not the entire term of a contract concluded between a consumer and a seller or supplier, but only those parts of it which are unfair, so that the term remains partially effective after the removal of those parts, where such removal would be tantamount to revising the content of the term by affecting its substance, which is a matter for the national court to determine.
2.
Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as:
precluding national case-law according to which the national court may, after finding that an unfair term contained in a contract concluded between a consumer and a seller or supplier is void and does not result in the annulment of that contract as a whole, replace that term with a supplementary provision of national law.
3.
Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as:
precluding national case-law according to which the national court may, after finding that an unfair term contained in a contract concluded between a consumer and a seller or supplier is void and that the contract as a whole is void, replace the annulled term either by interpreting the parties’ wishes in order to avoid the annulment of the contract, or by applying to the annulled unfair term a supplementary provision of national law, even though the consumer has been informed of the consequences of the annulment of that contract and has accepted them.
4.
Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as:
precluding national case-law according to which the 10-year limitation period for a consumer’s action for the restitution of sums unduly paid to a seller or supplier in performance of an unfair term contained in a credit agreement with a duration of 30 years begins to run on the date of each performance by the consumer, even though the consumer was not in a position, at that date, to assess the unfairness of the contractual term himself or herself or was not aware of the unfairness of the term, and regardless of the fact that the contract had a repayment period, in this case 30 years, which is much longer than the statutory limitation period of 10 years.
(1)
OJ C 242, 21.6.2021.