Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV.
Date: 2013-05-30
26. It is settled case‑law that the need for uniform application and, accordingly, for uniform interpretation of a European Union measure makes it impossible to consider one version of the text in isolation, but requires that that measure be interpreted on the basis of both the real intention of its author and the aim that the latter seeks to achieve, in the light, in particular, of the versions in all other official languages (see, inter alia, Case C‑569/08 Internetportal und Marketing  [2010] ECR I‑4871, paragraph 35, and Case C‑52/10 Eleftheri tileorasi and Giannikos  [2011] ECR I‑4973, paragraph 23).
28. It thus appears that, beyond the term used to designate the other party to the contract with the consumer, the legislature’s intention was not to restrict the scope of the directive solely to contracts concluded between a seller and a consumer.
29. In addition, it is necessary to note that no provision, in the body of the directive, specifies the types of contracts to which the directive applies. While a number of the recitals in the preamble thereto, such as the ninth recital, draw attention to the need to protect acquirers of goods and services against the abuse of power by the seller or supplier, the tenth recital in the preamble to the directive has a wider scope inasmuch as it states that the uniform rules of law in the matter of unfair terms should apply to ‘all contracts’ concluded between sellers or suppliers and consumers, as defined in Article 2(b) and (c) of the directive.
30. It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that the directive defines the contracts to which it applies.
31. That criterion corresponds to the idea on which the system of protection implemented by the directive is based, namely that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (see, inter alia, Case C‑618/10 Banco Español de Crédito [2012] ECR I‑0000, paragraph 39, and Case C‑472/11 Banif Plus Bank  [2013] ECR I‑0000, paragraph 19).
33. It must, however, be observed that, in accordance with Article 1(2) of the directive, contractual terms which reflect mandatory statutory or regulatory provisions of national law are not subject to the provisions of the directive (see Case C‑92/11 RWE Vertrieb  [2013] ECR I‑0000, paragraph 25). It is a matter for the national court to ascertain whether that is true of the terms which are the subject of the dispute pending before it.
38. As a preliminary point, it must be observed that Article 6(1) of the directive, according to which unfair terms are not binding on the consumer, is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see, inter alia, Banco Español de Crédito , paragraph 40, and Banif Plus Bank , paragraph 20).
39. In order to guarantee the protection intended by the directive, the Court has already stated on several occasions that the imbalance which exists between the consumer and the seller or supplier may be corrected only by positive action unconnected with the actual parties to the contract (see, inter alia, Banco Español de Crédito , paragraph 41, and Banif Plus Bank , paragraph 21 and the case-law cited).
40. It is in the light of that consideration that the Court has held that the national court is required, as soon as it has available to it the legal or factual elements necessary for that task, to assess of its own motion whether a contractual term falling within the scope of the directive is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier (see, inter alia, Banco Español de Crédito , paragraph 42, and Banif Plus Bank , paragraph 22).
41. Consequently, the role attributed to the national court by European Union law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task (see, inter alia, Banco Español de Crédito , paragraph 43, and Banif Plus Bank , paragraph 23).
42. In respect of the implementation of those obligations by a national court ruling in appeal proceedings, it must be noted that, in the absence of European Union legislation, the procedural rules governing appeal proceedings seeking to safeguard the rights that individuals derive from European Union law fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of those Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) and may not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law (principle of effectiveness) (see, to that effect, Banco Español de Crédito , paragraph 46, and Banif Plus Bank , paragraph 26).
43. So far as concerns the principle of equivalence, to which the second question for a preliminary ruling implicitly refers, it must be pointed out that, as recalled in paragraph 38 above, Article 6(1) of the directive is a mandatory provision. Furthermore, according to the Court’s case-law, that directive as a whole constitutes a measure which is essential to the accomplishment of the tasks entrusted to the European Union and, in particular, to raising the standard of living and the quality of life throughout the European Union (see Case C‑243/08 Pannon GSM  [2009] ECR I‑4713, paragraph 26, and Banco Español de Crédito , paragraph 67).
44. The Court has, furthermore, held that, in view of the nature and importance of the public interest underlying the protection which the directive confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy (see Case C‑40/08 Asturcom Telecomunicaciones  [2009] ECR I‑9579, paragraph 52, and order in Case C‑76/10 Pohotovost’  [2010] ECR I‑11557, paragraph 50). It must be held that that classification extends to all the provisions of the directive which are essential for the purpose of attaining the objective pursued by Article 6 thereof.
45. It follows that, where the national court has the power, under internal procedural rules, to examine of its own motion the validity of a legal measure in the light of national rules of public policy, which, according to the information provided in the order for reference, is the case in the Netherlands judicial system for a court ruling in appeal proceedings, it must also exercise that power for the purposes of assessing of its own motion, in the light of the criteria laid down in the directive, whether a contractual term coming within the scope of that directive may be unfair.
46. The national court is also under such an obligation where, under the domestic legal system, it merely has a discretion to consider of its own motion whether such a term is in conflict with national rules of public policy (see Asturcom Telecomunicaciones , paragraph 54 and the case-law cited).
The consequences to be drawn by the national court from the finding that a contractual term is unfair
49. The Court has interpreted that provision as meaning that it is for the national court to establish all the consequences, arising under national law, of a finding that the term in question is unfair in order to ensure that the consumer is not bound by that term ( Banco Español de Crédito , paragraph 63, and Banif Plus Bank , paragraph 27). In this connection, the Court has stated that, where the national court considers a contractual term to be unfair, it must not apply it, except if the consumer opposes that non-application (see Pannon GSM , paragraph 35).
50. It follows from that case-law 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 ( Banif Plus Bank , paragraphs 28 and 36).
52. In that context, it must be recalled that 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 ( Banif Plus Bank , paragraphs 31 and 36).
55. First of all, it should be stated that point 1(e) of the annex to that directive mentions, among the terms which may be declared unfair within the meaning of Article 3(3) of that directive, terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation. The Court has held in that regard that, while the content of that annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless an essential element on which the competent court may base its assessment as to the unfair nature of that term (Case C‑472/10 Invitel  [2012] ECR I‑0000, paragraph 26).
57. The Court has inferred from that wording of Article 6(1) that national courts are required to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise the content of that term. That contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible ( Banco Español de Crédito , paragraph 65).
58. The Court has also observed that that interpretation is, moreover, borne out by the objective and overall scheme of the directive. In this connection, it has pointed out that, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, the directive requires Member States, as is apparent from Article 7(1) thereof, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’. If it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7 of the directive, since it would weaken the dissuasive effect on sellers or suppliers of the straightforward non‑application of those unfair terms with regard to the consumer ( Banco Español de Crédito , paragraphs 66 to 69).
59. It follows that Article 6(1) of the directive cannot be interpreted as allowing the national court, in the case where it establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, to reduce the amount of the penalty imposed on the consumer instead of excluding the application of that clause in its entirety with regard to that consumer.