Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba and Others.
Date: 2019-11-07
30


At the outset, it should be noted, first, that, by its first question, the referring court seeks to obtain an interpretation of Article 9(4) of Regulation No 1371/2007 in the light of Directive 93/13. That regulation does not however contain any references to Directive 93/13. Moreover, it follows from a comparison of Article 1 of each that that regulation and that directive have different subject matters. Therefore, the provisions of Directive 93/13 cannot be relevant to the interpretation of Regulation No 1371/2007 (see, by analogy, judgments of 9 September 2004, Meiland Azewijn, C‑292/02, EU:C:2004:499, paragraph 40; of 15 December 2011, Møller, C‑585/10, EU:C:2011:847, paragraphs 37 and 38; and of 11 September 2014, Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 40).
32


It follows however from the Court’s settled case-law that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 36 and the case-law cited).
35


It should be noted that, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules (see judgments of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited, and of 22 November 2012, Westbahn Management, C‑136/11, EU:C:2012:740, paragraph 33 and the case-law cited).
58


According the Court’s settled case-law, as is apparent from the 13th recital of Directive 93/13, the exclusion provided for in Article 1(2) thereof extends to provisions of national law that apply between the parties to the contract independently of their choice and to provisions that apply by default, that is to say, in the absence of other arrangements established by the parties in that regard, and to contractual terms reflecting those provisions (see, to that effect, judgments of 21 March 2013, RWE Vertrieb, C‑92/11, EU:C:2013:180, paragraph 26; of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraphs 30, 31 and 42; and order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 25).
59


That exclusion is justified by the fact that, in principle, it may legitimately be supposed that the national legislature has struck a balance between all the rights and obligations of the parties to certain contracts, a balance which the EU legislature has expressly intended to preserve (see, to that effect, judgment of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraph 41 and the case-law cited, and order of 7 December 2017, Woonhaven Antwerpen, C‑446/17, not published, EU:C:2017:954, paragraph 26).
60


That exclusion from the scope of application of Directive 93/13 requires therefore, according to the Court’s case-law, two conditions to be met. Firstly, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory (judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 78, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 28).
61


Moreover, it results, in essence, from the Court’s case-law that that exclusion covers mandatory statutory or regulatory provisions other than those relating to the scope of the national court’s powers to assess the unfairness of a contractual term (see, to that effect, judgments of 30 April 2014, Barclays Bank, C‑280/13, EU:C:2014:279, paragraphs 39 and 40 and the case-law cited, and of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 44).
62


Determining whether those conditions have been met in each individual case is a matter for the national court (see, to that effect, judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 33, and of 20 September 2017, Andriciuc and Others, C‑186/16, EU:C:2017:703, paragraph 29 and the case-law cited).
63


In carrying out that determination, that court must take into account the fact that, having regard to the purpose of Directive 93/13, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, the exception provided for in Article 1(2) of the directive is to be strictly construed (see, to that effect, judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 77, and of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 54 and the case-law cited).
66


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. In that regard, the Court has stated that, where the national court considers a contractual term to be unfair, it is required to disapply it in order that it may not produce binding effects with regard to the consumer, except if the consumer opposes that non-application (see, to that effect, judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 49 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52).
67


The Court has also held that, where a national court finds that an unfair term in a contract concluded between a seller or supplier and a consumer is void, Article 6(1) of Directive 93/13 must be interpreted as precluding a rule of national law which allows the national court to modify that contract by revising the content of that term (judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 53). In particular, the Court has held that that provision cannot be interpreted as allowing the national court, where it establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, to moderate 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 (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 59, and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 29).
68


The contract must therefore 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 (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 57 and the case-law cited, and of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28).
69


If it were open to the national court to revise the content of unfair terms, such a power would be liable to compromise attainment of the long-term objective of Article 7 of Directive 93/13. That power would contribute to eliminating the dissuasive effect for sellers or suppliers of the straightforward non-application with regard to the consumer of those unfair terms, in so far as those sellers or suppliers would still be tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could nevertheless be adjusted, to the extent necessary, by the national court in such a way as to safeguard the interest of those sellers or suppliers (judgments of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 58, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 54 and the case-law cited).
70


Moreover, it is true that the Court acknowledged an exception to that principle by holding that Article 6(1) of Directive 93/13 does not preclude a national court from removing, in accordance with the principles of contract law, an unfair term and replacing it with a supplementary provision of national law, provided that that substitution is consistent with the objective of Article 6(1) of Directive 93/13 and enables real balance between the rights and obligations of the parties to be restored which re-establishes equality between them. However, the Court has limited that possibility to cases in which the invalidity of the unfair term would require the court to annul the contract in its entirety, thereby exposing the consumer to particularly unfavourable consequences, so that the consumer would thus be penalised (see, to that effect, judgments of 21 January 2015, Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21 paragraph 33 and the case-law cited, and of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 56 and 57).