Commission of the European Communities v Kingdom of Sweden.
Date: 2002-05-07
11 The fact that the list of unfair terms set out in the annex to the Directive is, as noted in Article 3(3), non-exhaustive means that, in accordance with Article 8 of the Directive, it may be subject to amplification or more restrictive formulations by the Member States in their national laws. Similarly, the fact that this list is, as specified in Article 3(3), indicative, merely means that the terms listed therein should not automatically be considered unfair but that the competent national authority must be free to assess their character in light of the general criteria defined in Articles 3(1) and Article 4 of the Directive.
15 In that respect, it should be recalled that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see in particular Case C-336/97 Commission v Italy [1999] ECR I-3771, paragraph 19, and Case C-97/00 Commission v France [2001] ECR I-2053, paragraph 9).
16 In this case, Article 6 of the Directive requires Member States to take the necessary measures to ensure that unfair terms used in a contract concluded with a consumer by a seller or supplier are not binding on the consumer. Article 7 also requires them to put in place adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.
17 Article 3 of the Directive generally defines the factors that make a term unfair. Article 4 specifies that this unfairness is to be assessed taking into account the circumstances attending the conclusion of the contract. Article 5 lays down a requirement for clarity in the drafting of the terms offered to the consumer.
18 Those provisions, which are intended to grant rights to consumers, define the result sought by the Directive. According to settled case-law, it is essential that the legal situation resulting from national implementing measures be sufficiently precise and clear and that individuals be made fully aware of their rights so that, where appropriate, they may rely on them before the national courts (see, in particular, Case C-365/93 Commission v Greece [1995] ECR I-499, paragraph 9, and Case C-144/99 Commission v Netherlands [2001] ECR I-3541, paragraph 17). As the Court has already made clear, the latter condition is of particular importance where the directive in question is intended to confer rights on nationals of other Member States as is the case here (Commission v Netherlands, paragraph 18).
20 As regards the annex referred to in Article 3(3) of the Directive, implementation of which is the subject of this action, the annex in question is, according to the terms of Article 3(3), to contain an indicative and non-exhaustive list of terms which may be regarded as unfair. It is not disputed that a term appearing in the list need not necessarily be considered unfair and, conversely, a term that does not appear in the list may none the less be regarded as unfair.