Erika Jőrös v Aegon Magyarország Hitel Zrt..
Date: 2013-05-30
24. As a preliminary point, it must be observed, as the European Commission has noted, that the order for reference does not contain any information as regards the production by the parties to the dispute in the main proceedings, at the appeal stage, of new facts or evidence. In so far as the third question is to be interpreted as concerning, in part, the issue of whether an appeal court, before which proceedings have been brought concerning the validity of terms in a contract concluded between a seller or supplier and a consumer, is required to accept the production of new facts or evidence, that part of the question is thus hypothetical and, to that extent, inadmissible (see, inter alia, by analogy, Case C‑396/11 Radu  [2013] ECR I‑0000, paragraph 24).
25. With a view to answering the admissible part of the question, it must be observed that Article 6(1) of Directive 93/13, according to which unfair terms are not binding on the consumer, constitutes a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and the obligations of the parties with an effective balance which re‑establishes equality between them (see, inter alia, Case C‑618/10 Banco Español de Crédito [2012] ECR I‑0000, paragraph 40, and Case C‑472/11 Banif Plus Bank  [2013] ECR I‑0000, paragraph 20).
26. In order to guarantee the protection intended by Directive 93/13, the Court has already stated on several occasions 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 (see, inter alia, Banco Español de Crédito , paragraph 41, and Banif Plus Bank , paragraph 21 and the case-law cited).
27. It is in the light of that consideration that the Court has held that the national court is required, as soon as it has available to it the legal or factual elements necessary for that task, to assess of its own motion whether a contractual term falling within the scope of Dir ective 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier (see, inter alia, Banco Español de Crédito , paragraphs 42 to 44, and Banif Plus Bank , paragraphs 22 to 24).
28. Consequently, the role attributed to the national court by European Union law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task (see, inter alia, Banco Español de Crédito , paragraph 43, and Banif Plus Bank , paragraph 23).
29. In respect of the implementation of those obligations by a national court ruling in appeal proceedings, it must be noted that, in the absence of European Union legislation, the procedural rules governing appeal proceedings for safeguarding the rights that individuals derive from European Union law fall within the internal legal order of the Member States by virtue of the principle of procedural autonomy of those Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) and may not be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law (principle of effectiveness) (see, to that effect, Banco Español de Crédito , paragraph 46, and Banif Plus Bank , paragraph 26).
30. So far as the principle of equivalence is concerned, it stems from that principle that, where the national court ruling in appeal proceedings has a discretion or the obligation to examine of its own motion the validity of a legal measure in the light of national rules of public policy, even though no conflict in that area was raised at first instance, it must also exercise such a power for the purposes of assessing, of its own motion, in the light of the criteria in Directive 93/13, whether a contractual term falling within the scope of application of that directive is unfair. Should the referring court establish that, in domestic-law situations, it has that power, it would be required to exercise it in a situation such as that in the main proceedings, which calls into question the protection of the rights which the consumer derives from European Union law (see, to that effect, Case C‑40/08 Asturcom Telecomunicaciones  [2009] ECR I‑9579, paragraphs 53 and 54, and Case C‑488/11 Asbeek Brusse and de Man Garabito  [2013] ECR I‑0000, paragraphs 45 and 46).
32. With regard to the principle of effectiveness, it should be noted that the Court has consistently held that every case in which the question arises as to whether a national procedural provision makes the application of European Union law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies (see Banco Español de Crédito , paragraph 49 and the case-law cited). The national court is required to interpret and apply all of the national provisions at issue in order to ensure, as far as possible, that the rights guaranteed by the provisions of European Union law are implemented effectively.
41. 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 (see, inter alia, Banco Español de Crédito , paragraph 63, and Banif Plus Bank , paragraph 27). In this connection, the Court has stated that, where the national court considers a contractual term to be unfair, it must not apply it, except if the consumer opposes that non-application, after having been informed of it by that court (see, to that effect, Case C‑243/08 Pannon GSM  [2009] ECR I‑4713, paragraph 35).
42. It follows from that case-law that the full effectiveness of the protection provided for by Directive 93/13 requires that the national court which has found of its own motion that a term is unfair should be able to establish all the consequences of that finding, without waiting for the consumer, who has been fully informed of his rights, to submit a statement requesting that that term be declared invalid (see, to that effect, Banif Plus Bank , paragraph 28, and Asbeek Brusse and de Man Garabito , paragraph 50).
43. As the Court has already held, national legislation such as that at issue in the main proceedings, providing that terms declared unfair are invalid, satisfies the requirements of Article 6(1) of Directive 93/13 (see, to that effect, Case C‑472/10 Invitel  [2012] ECR I‑0000, paragraphs 39 and 40).
45. In this connection, Article 6(1) in fine  of Directive 93/13 states that ‘the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms’ (Case C‑453/10 Pereničová and Perenič  [2012] ECR I‑0000, paragraph 29).
46. As the Court has observed, the objective pursued by the European Union legislature in connection with Directive 93/13 consists, not in annulling all contracts containing unfair terms, but in restoring the balance between the parties while in principle preserving the validity of the contract as a whole (see, to that effect, Pereničová and Perenič , paragraph 31).
47. As regards the criteria for assessing whether a contract can indeed continue to exist without the unfair terms, the Court has held that both the wording of Article 6(1) of Directive 93/13 and the requirements concerning the legal certainty of economic activities plead in favour of an objective approach in interpreting that provision ( Pereničová and Perenič , paragraph 32). However, since that directive effected only a partial and minimum harmonisation of the national legislation concerning unfair terms, it does not preclude the possibility, in compliance with European Union law, that a contract concluded between a trader and a consumer which contains one or more unfair terms may be declared invalid as a whole where that will ensure better protection of the consumer (see, to that effect, Pereničová and Perenič , paragraph 35).
50. In this connection, it must be recalled that it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from European Union law. However, it is the Member States’ responsibility to ensure that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations based on European Union law may give rise in the national judicial system (see, inter alia, Case C‑54/96 Dorsch Consult  [1997] ECR I‑4961, paragraph 40, and Case C‑462/99 Connect Austria  [2003] ECR I‑5197, paragraph 35).
52. In those circumstances, it follows from the requirements that national law be interpreted in accordance with Directive 93/13 and that the rights of consumers should be effectively protected that it is for the national court to apply, as far as possible, its internal procedural rules in such a way as to achieve the result laid down by Article 6(1) of that directive.
53. The answer to the second question is therefore that Directive 93/13 must be interpreted as meaning that a national court which has, of its own motion, established that a contractual term is unfair must, as far as possible, apply its internal procedural rules in such a way as to draw all the consequences which, under national law, result from a finding that the term at issue is unfair, in order to satisfy itself that the consumer is not bound by that term.
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