Profi Credit Polska S.A. v Bogumiła Włostowska and Others and Profi Credit Polska S.A. v OH.
Date: 2019-11-07
41


First, it should be noted that Directive 2008/48 did not effect harmonisation in the use of promissory notes as security for the payment of a debt resulting from consumer credit, which means that Article 22 of that directive is not applicable in circumstances such as those at issue in the main proceedings (see, to that effect, judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraphs 34 to 37).
46


As a preliminary point, it is to be noted that, in EU policies, the protection of consumers — who are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than the opposite party — is enshrined in Article 169 TFEU and Article 38 of the Charter of Fundamental Rights of the European Union (judgment of 27 March 2019, slewo, C‑681/17, EU:C:2019:255, paragraph 32 and the case-law cited).
47


In that context, it should be borne in mind, first, that, under Article 6(1) of Directive 93/13, it is for the referring courts to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer, unless the consumer objects (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 52 and the case-law cited). Second, Article 7(1) of Directive 93/13, read in conjunction with the 24th recital thereof, provides that Member States must ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers (judgment of 3 April 2019, Aqua Med, C‑266/18, EU:C:2019:282, paragraph 42 and the case-law cited).
51


According to Articles 1(1) and 3(1) of Directive 93/13, that directive applies to the terms of contracts concluded between a seller or supplier and a consumer which have not been individually negotiated (judgments of 9 September 2004, Commission v Spain, C‑70/03, EU:C:2004:505, paragraph 31, and of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 50, and order of 14 September 2016, Dumitraș, C‑534/15, EU:C:2016:700, paragraph 25 and the case-law cited).
53


In the second place, Directive 93/13 obliges Member States to provide for a mechanism ensuring that every contractual term not individually negotiated may be reviewed in order to determine whether it is unfair. In that context, it is for the national court to determine, taking account of the criteria laid down in Article 3(1) and Article 5 of Directive 93/13, whether, having regard to the particular circumstances of the case, such a term meets the requirements of good faith, balance and transparency laid down by that directive (judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraph 50 and the case-law cited).
55


According to settled case-law, in order to ascertain whether a term may be categorised as ‘unfair’, the national court must assess whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in contract negotiations (see, to that effect, judgment of 14 March 2013, Aziz, C‑415/11, EU:C:2013:164, paragraph 69, and order of 22 February 2018, Lupean, C‑119/17, not published, EU:C:2018:103, paragraph 30 and the case-law cited).
57


Further, the assessment of whether that provision and the promissory note agreement are unfair will have to take into account both the requirement relating to a significant imbalance and the requirement of transparency which flows from Article 5 of Directive 93/13. Indeed, it is settled case-law that information, before concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is on the basis of that information in particular that the consumer decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier (judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 50 and the case-law cited).
59


It should also be noted that the Court has previously ruled that Article 10(2) of Directive 2008/48 requires a national court hearing a dispute concerning claims based on a credit agreement within the meaning of that directive to examine of its own motion whether the obligation to provide information laid down in that provision has been complied with and to establish the consequences which follow under national law of any infringement from that obligation, provided that the penalties satisfy the requirements of Article 23 of that directive (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 74).
63


In the first situation, it is apparent from the case-law of the Court that, where a court has available to it the necessary legal and factual elements, it is obliged to carry out an examination of its own motion of the terms that may be unfair (see, to that effect, judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 42 and the case-law cited).
64


In the second situation, and in particular with regard to the clarifications given by the referring court in Case C‑483/18, which indicates that it does not have available to it the contract binding the parties to the dispute in the main proceedings, but is aware of the content of other contracts habitually used by the seller or supplier, it should be recalled that although, under Article 3(1) of Directive 93/13, that directive applies to clauses which have not been individually negotiated, which includes in particular standard form contracts, it cannot be considered that a court ‘has available to it the legal and factual elements’, within the meaning of the case-law referred to above, solely because it has an awareness of certain pro forma contracts used by the seller or supplier, without that court having in its possession the instrument recording the contract concluded between the parties to the dispute pending before it (see, to that effect, judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 47).
66


In any event, it is apparent from settled case-law that it is for the national court to investigate of its own motion whether a term in the 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, to assess whether such a term is unfair (judgments of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 56, of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 44; and of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 24). Without effective review of whether the terms of the contract concerned are unfair, observance of the rights conferred by Directive 93/13 cannot be guaranteed (judgment of 13 September 2018, Profi Credit Polska, C‑176/17, EU:C:2018:711, paragraph 62 and the case-law cited).
69


With regard to Article 10(2) of Directive 2008/48, where the national court has, of its own motion, found an infringement of that provision, it is obliged to give due effect to all the consequences under national law resulting from such an infringement without waiting for the consumer to make an application to that effect, provided always that the principle of audi alteram partem has been complied with (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 71 and the case-law cited).
70


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 to that end, that a term comes within the scope of the directive, if the national court finds 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 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 by the national rules of procedure (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 31).
73


In that regard, it must be noted that the obligation on a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 288 TFEU and by the directive itself. That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, point 76 and the case-law cited).
74


In the present case, it is apparent from settled case-law that the obligation to examine of their own motion the unfairness of certain terms and the presence of mandatory information in a credit agreement constitutes a procedural rule placed on the courts (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, point 77 and the case-law cited).
75


Thus, when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the relevant directive in order to achieve the result sought by the directive (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, point 79 and the case-law cited).
76


In that context, it follows from the case-law of the Court that, where they cannot interpret and apply national legislation in accordance with the requirements of Directive 93/13, national courts are obliged to examine of their own motion whether the provisions agreed between the parties are unfair and, where necessary, are to disapply any national legislation or case-law which precludes such an examination (see, to that effect, judgments of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraphs 32, 34 and 35; of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 42 and the case-law cited; and of 18 February 2016, FinanmadridEFC, C‑49/14, EU:C:2016:98, paragraph 46).