Banif Plus Bank Zrt v Csaba Csipai and Viktória Csipai.
Date: 2013-02-21
19. In order to answer those questions, it is necessary to bear in mind that the system of protection implemented by the Directive is based on the idea 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-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579, paragraph 29, and judgment of 14 June 2012 in Case C-618/10 Banco Español de Crédito , paragraph 39).
20. In the light of that weaker position, Article 6(1) of the Directive provides that unfair terms are not binding on the consumer. As is apparent from the case-law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and the obligations of the parties with an effective balance which re-establishes equality between them (see, inter alia, Case C-137/08 VB Pénzügyi Lízing [2010] ECR I-10847, paragraph 47, and Banco Español de Crédito , paragraph 40).
21. 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, VB Pénzügyi Lízing , paragraph 48, and Banco Español de Crédito , paragraph 41).
22. It is in the light of those considerations that the Court has held that the national court is required 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, VB Pénzügyi Lízing , paragraph 49, and Banco Español de Crédito , paragraph 42).
23. 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, Case C-243/08 Pannon GSM  [2009] ECR I-4713, paragraph 32, and Banco Español de Crédito , paragraph 43).
24. In this connection, in ruling on an order for reference submitted by a national court before which adversarial proceedings between a consumer and a seller or supplier have been brought, the Court has held that that national court must investigate of its own motion whether a term in a contract concluded between a seller or supplier and a consumer falls within the scope of the Directive and, if it does, assess of its own motion whether such a term is unfair (see, to that effect, VB Pénzügyi Lízing , paragraph 56, and Banco Español de Crédito , paragraph 44).
26. In that regard, it must be noted that, in the absence of European Union legislation, the procedural rules governing actions for safeguarding 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, Asturcom Telecomunicaciones , paragraph 38, and Banco Español de Crédito , paragraph 46).
27. As regards the obligation to ensure the effectiveness of the protection afforded by the Directive with regard to the penalising of an unfair term, the Court has already stated that it is for the national court to establish all the consequences, arising under national law, of a finding that a term is unfair in order to ensure that the consumer is not bound by that term ( Asturcom Telecomunicaciones , paragraph 59). The Court has, however, stated that the national court is not required under the Directive to exclude the possibility that the term in question may be applicable if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status (see Pannon GSM , paragraphs 33 and 35).
28. 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 subm it a statement requesting that that term be declared invalid.
29. However, in implementing European Union law, the national court must also respect the requirements of effective judicial protection of the rights that individuals derive from European Union 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 (see, to that effect, Case C-89/08 P Commission  v Ireland and Others [2009] ECR I-11245, paragraphs 50 and 54).
30. Thus, the Court has held that, as a general rule, the principle of audi alteram partem  does not merely confer on each party to proceedings the right to be apprised of the documents produced and observations made to the court by the other party and to discuss them, but it also implies a right for the parties to be apprised of pleas in law raised by the court of its own motion, on which it intends to base its decision, and to discuss them. The Court has pointed out that, in order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (see Commission  v Ireland and Others , paragraphs 55 and 56).
31. It follows that, where the national court, after establishing, on the basis of the matters of fact and law at its disposal, or which were communicated to it following the measures of inquiry which it undertook of its own motion, that a term comes within the scope of the Directive, finds, following an assessment made of its own motion, that that term is unfair, it is, as a general rule, required to inform the parties to the dispute of that fact and to invite each of them to set out their 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.
33. Where a court establishes of its own motion the unfairness of a contractual term, the obligation to notify the parties and to give them the opportunity to set out their views cannot, moreover, be regarded as being, in itself, incompatible with the principle of effectiveness which governs the implementation, by the Member States, of rights conferred by European Union law. It is undisputed that 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 (see, to that effect, Asturcom Telecomunicaciones , paragraph 39).
35. That opportunity afforded to the consumer to set out his views on that point also fulfils the obligation on the national court, as was pointed out in paragraph 25 of the present judgment, 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.
36. Consequently, the answer to the first and second questions is that Article 6(1) and 7(1) of the Directive 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.
The third question
40. Under Article 3(1) of the Directive, 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.