Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc).
Date: 2010-06-03
18. In that regard, it is necessary to state, at the outset, that, in accordance with settled case‑law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the forthcoming judicial decision, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (Case C‑145/03 Keller  [2005] ECR I‑2529, paragraph 33; Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43; and Case C‑11/07 Eckelkamp and Others  [2008] ECR I‑6845, paragraphs 27 and 32).
19. Thus, although the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to confirm its own jurisdiction (see, to that effect, Case 244/80 Foglia  [1981] ECR 3045, paragraph 21, and Case C-314/08 Filipiak  [2009] ECR I‑0000, paragraph 41), the Court may decline to rule on a question referred for a preliminary ruling by a national court only where, inter alia, it is quite obvious that the provision of European Union law referred to the Court for interpretation is incapable of applying (see Case C‑85/95 Reisdorf  [1996] ECR I‑6257, paragraph 16, and Case C‑567/07 Woningstichting Sint Servatius  [2009] ECR I‑0000, paragraph 43).
27. In order to reply to the questions referred, it is necessary to point out 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, and Case C-168/05 Mostaza Claro  [2006] ECR I‑10421, paragraph 25).
28. Nevertheless, as expressly indicated in the 12th recital in its preamble, the Directive carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while recognising that Member States have the option of affording consumers a higher level of protection than that for which the Directive provides.
29. Thus, Article 8 of the Directive formally lays down the option for Member States to ‘adopt or retain [more] stringent provisions compatible with the Treaty in the area covered by [the] Directive, to ensure a [greater] degree of protection for the consumer’.
31. In that regard, it should be borne in mind that Article 4(2) of the Directive provides only that the ‘[a]ssessment of the unfair nature’ is not to apply to the terms to which that provision relates, on condition that they are drafted in plain, intelligible language.
32. It thus follows from the actual wording of Article 4(2) of the Directive that that provision, as the Advocate General has noted in point 74 of her Opinion, cannot be regarded as laying down the scope ratione materiae  of the Directive. On the contrary, the terms referred to in Article 4(2), while they come within the area covered by the Directive, escape the assessment as to whether they are unfair only in so far as the national court having jurisdiction should form the view, following a case-by-case examination, that they were drafted by the seller or supplier in plain, intelligible language.
33. It follows, moreover, from the Court’s case‑law 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 contract terms subject to the provisions of the Directive are unfair (see, to that effect, Case C‑478/99 Commission  v Sweden  [2002] ECR I‑4147, paragraphs 11 and 17, and Case C‑237/02 Freiburger Kommunalbauten  [2004] ECR I‑3403, paragraphs 18, 19 and 21).
34. Similarly, Article 4(2) of the Directive is concerned, as the Advocate General has noted in point 75 of her Opinion, solely with establishing the detailed rules and the scope of the substantive assessment of contract terms which have not been individually negotiated and which describe the essential obligations of contracts concluded between a seller or supplier and a consumer.
35. It follows that the terms referred to in Article 4(2) do indeed come within the area covered by the Directive and that, consequently, Article 8 of the Directive applies equally to Article 4(2).
40. It follows from all of the foregoing that Member States cannot be prevented from adopting or retaining, throughout the area covered by the Directive, including Article 4(2) thereof, rules which are more stringent than those provided for by the Directive itself, on condition that they are designed to afford consumers a higher level of protection.
46. With regard to Articles 2 EC and 4(1) EC, suffice it to state that, according to settled case‑law, those provisions set out general objectives and principles which are necessarily applied in combination with the respective chapters of the EC Treaty intended to give effect to those principles and objectives. They cannot therefore in themselves have the effect of creating for Member States clear and unconditional legal obligations (see, to that effect, concerning Article 2 EC, Case C‑339/89 Alsthom Atlantique  [1991] ECR I‑107, paragraph 9, and, with regard to Article 4(1) EC, Case C‑9/99 Échirolles Distribution  [2000] ECR I‑8207, paragraph 25).
47. Likewise, Article 3(1)(g) EC also cannot, by itself, produce legal obligations for the Member States. That provision is limited to indicating, as the Court has already clarified, an objective which must, however, be specified more closely in other provisions of the Treaty, in particular those concerning competition rules (see, to that effect, Case 322/81 Nederlandsche Banden‑Industrie‑Michelin v Commission  [1983] ECR 3461, paragraph 29, and Alsthom Atlantique , paragraph 10).