VB Pénzügyi Lízing Zrt. v Ferenc Schneider.
Date: 2010-11-09
28. In order to reply to the question asked, it must be emphasised that the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties (Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 31; Case C-2/06 Kempter  [2008] ECR I‑411, paragraph 41; and Case C-210/06 Cartesio  [2008] ECR I‑9641, paragraph 90).
29. The system of references for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether a reference is appropriate and necessary ( Kempter , paragraph 42, and Cartesio , paragraph 91).
37. In order to answer those questions, it must be borne in mind that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such European Union law as is necessary for them to give judgment in cases upon which they are called to adjudicate (see, inter alia, Case C‑231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraph 18, and Case C‑314/96 Djabali  [1998] ECR I‑1149, paragraph 17).
38. As regards the provisions of European Union law which may be the subject of a ruling of the Court of Justice under Article 267 TFEU, it must be recalled that the Court of Justice has jurisdiction to give a preliminary ruling on the validity and interpretation of all acts of the institutions of the European Union without exception (see Case C‑322/88 Grimaldi [1989] ECR 4407, paragraph 8, and Case C‑11/05 Friesland Coberco Dairy Foods  [2006] ECR I‑4285, paragraphs 35 and 36).
40. In that connection, the Court of Justice has held that Articles 3(1) and 4(1) of the Directive, taken as a whole, define the general criteria permitting an assessment as to whether the contractual terms subject to the provisions of the Directive are unfair (see Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid  [2010] ECR I-0000, paragraph 33, and the case-law cited).
42. In that connection, the Court of Justice observed, in paragraphs 37 to 39 of that judgment, that Article 3 of the Directive merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated, that the Annex to which Article 3(3) of the Directive refers contains only an indicative and non-exhaustive list of terms which may be regarded as unfair and that Article 4 of the Directive provides that the unfairness of a contractual term is to be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of it.
43. Against that background, in the reply to that question, the Court of Justice made clear that it is for the national court to determine whether a contractual term satisfies the criteria to be categorised as ‘unfair’ within the meaning of Article 3(1) of the Directive, and that, in so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business may be considered to be unfair (see Pannon GSM , paragraph 44).
44. The answer to the first and second additional questions referred is therefore that Article 267 TFEU must be interpreted as meaning that the jurisdiction of the Court of Justice extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of the Directive and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the Directive, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case.
The third additional question referred
46. For the purpose of replying to the question referred, it should be noted that, according to settled case-law, the system of protection introduced 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 (Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores  [2000] ECR I‑4941, paragraph 25; Case C-168/05 Mostaza Claro  [2006] ECR I-10421, paragraph 25; and Case C-40/08 Asturcom Telecomunicaciones  [2009] ECR I‑9579, paragraph 29).
47. The Court of Justice has also held that, on account of that weaker position, Article 6(1) of the Directive provides that unfair terms are not binding on the consumer. As is apparent from case‑law, that 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 ( Mostaza Claro , paragraph 36, and Asturcom Telecomunicaciones , paragraph 30).
48. In order to guarantee the protection intended by the Directive, the Court has also stated 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 ( Océano Grupo Editorial and Salvat Editores , paragraph 27, Mostaza Claro , paragraph 26, and Asturcom Telecomunicaciones , paragraph 31).
49. Thus, in the exercise of the functions incumbent upon it under the provisions of the Directive, the national court must ascertain whether a contractual term which is the subject of the dispute before it falls within the scope of that Directive. If it does, that court must assess that term, if necessary, of its own motion, in the light of the requirements of consumer protection laid down by that Directive.
50. As regards the first stage of the examination to be carried out by the national court, it appears from Article 1 in conjunction with Article 3 of the Directive that it applies to any term conferring exclusive territorial jurisdiction which was not individually negotiated appearing in a contract concluded between a seller or supplier and a consumer.
53. As regards a term which is included, without being individually negotiated, in a contract between a consumer and a seller or supplier within the meaning of the Directive, where it confers exclusive jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business, the Court has held, in paragraph 24 of Océano Grupo Editorial and Salvat Editores , that it follows that such a term must be regarded as unfair within the meaning of Article 3 of the Directive in so far as it causes, contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
54. It must be observed that the term which the national court is examining in the main proceedings, like a term whose purpose is to confer jurisdiction in respect of all disputes arising under the contract on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business, obliges the consumer to submit to the exclusive jurisdiction of a court which may be a long way from his domicile. This may make it difficult for him to enter an appearance. In the case of disputes concerning limited amounts of money, the costs relating to the consumer’s entering an appearance could be a deterrent and cause him to forgo any legal remedy or defence. Such a term thus falls within the category of terms which have the object or effect of excluding or hindering the consumer’s right to take legal action, a category referred to in subparagraph (q) of paragraph 1 of the Annex to the Directive (see Océano Grupo Editorial and Salvat Editores , paragraph 22).
55. In addition, such a term enables the seller or supplier to deal with all the litigation relating to his trade, business or profession in one court, which is not the one within whose jurisdiction the consumer lives, which makes it easier for the seller or supplier to arrange to enter an appearance and makes it less onerous for him to do so (see, to that effect, Océano Grupo Editorial and Salvat Editores , paragraph 23).
56. The answer to the third additional question referred is thus that the national court must investigate of its own motion whether a term conferring exclusive territorial jurisdiction in a contract concluded between a seller or supplier and a consumer, which is the subject of a dispute before it, falls within the scope of the Directive and, if it does, assess of its own motion whether such a term is unfair.
Costs