Pohotovosť s. r. o. v Miroslav Vašuta.
Date: 2014-02-27
21. It should be recalled, first, that the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure under Article 83 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be decided on the basis of an argument which has not been debated between the parties (Case C‑361/12 Carratù [2013] ECR, paragraph 18 and the case-law cited).
22. Secondly, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a request for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. Since the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based, it is not absolutely necessary to reopen the oral procedure, under Article 83 of the Rules of Procedure, each time the Advocate General raises a point of law which was not the subject of debate between the parties ( Carratù , paragraph 19 and the case-law cited).
27. It should be noted in that respect that, according to settled case‑law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, for example, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22 and the case-law cited).
28. Nevertheless, it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision which is capable of taking account of the preliminary ruling (see, to that effect, Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others  [1995] ECR I‑1567, paragraph 28; Case C‑314/96 Djabali [1998] ECR I‑1149, paragraph 18; and Case C‑225/02 García Blanco  [2005] ECR I‑523, paragraph 27).
29. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see Case 244/80 Foglia [1981] ECR 3045, paragraph 18; Joined Cases C‑480/00 to C‑482/00, C‑484/00, C‑489/00 to C‑491/00 and C‑497/00 to C‑499/00 Azienda Agricola Ettore Ribaldi and Others [2004] ECR I‑2943, paragraph 72; and García Blanco , paragraph 28).
30. In the present case, it must be pointed out that, when asked by the Court, the referring court indicated that the case was still pending. Since the procedure provided for by Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of European Union law which they need in order to decide the disputes before them (see, inter alia, Case C‑83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and Case C‑445/06 Danske Slagterier [2009] ECR I‑2119, paragraph 65), such an indication by a national court cannot, in principle, be called into question by the parties to the main proceedings.
31. As regards the fact that an appeal was brought against the order for reference, it must be noted that, in accordance with Article 267 TFEU, the assessment of the relevance and necessity of the question referred for a preliminary ruling is, in principle, the responsibility of the referring court alone, subject to the limited verification made by the Court in accordance with the case-law cited in paragraph 27 above. Thus, it is for the referring court to draw the proper inferences from a judgment delivered on an appeal against its decision to refer and, in particular, to come to a conclusion as to whether it is appropriate to maintain the reference for a preliminary ruling, or to amend it or to withdraw it (Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 96).
32. It follows that, in a situation such as that in the main proceedings, the Court must – also in the interests of clarity and legal certainty – abide by the decision to make a reference for a preliminary ruling, which must have its full effect so long as it has not been revoked or amended by the referring court, such revocation or amendment being matters on which that court alone is able to take a decision ( Cartesio , paragraph 97).
39. According to settled case-law, the system of protection introduced by Directive 93/13 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 the order in Pohotovost’ , paragraph 37).
40. In order to ensure the effectiveness of the protection which Directive 93/13 is intended to provide, the Court has held on numerous occasions that such an imbalance may only be corrected by positive action unconnected with the actual parties to the contract ( Océano Grupo Editorial and Salvat Editores , paragraph 27; Mostaza Claro , paragraph 26; Asturcom Telecomunicaciones , paragraph 31; and the order in Pohotovost’ , paragraph 39).
41. A court’s power to determine of its own motion whether a term is unfair must be regarded as constituting a proper means both of achieving the result sought by Article 6 of Directive 93/13, namely preventing an individual consumer from being bound by an unfair term, and of contributing to the attainment of the objective of Article 7, since, if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms being used by traders in contracts concluded with consumers (Case C‑473/00 Cofidis [2002] ECR I‑10875, paragraph 32; Mostaza Claro , paragraph 27; and the order in Pohotovost’ , paragraph 41).
42. As the Advocate General noted, inter alia in points 55 and 56 of his Opinion, it is clear from the case-law of the Court that it is for the national court or tribunal seised, as in the main proceedings, of an action for enforcement of a final arbitration award to take positive action unconnected with the actual parties to the contract, as provided for in Directive 93/13, in order to correct the imbalance between the consumer and the seller or supplier. Provided that it has available to it the necessary legal and factual elements, the national court or tribunal is required to assess of its own motion the unfair nature of the contractual terms which give rise to the debt determined in that arbitration award when, under national rules of procedure, it is required to assess of its own motion, in similar enforcement proceedings, whether an arbitration clause is in conflict with national rules of public policy (see, to that effect, Case C‑243/08 Pannon GSM  [2009] ECR I‑4713, paragraph 32; Asturcom Telecomunicaciones , paragraph 53; and the order in Pohotovost’ , paragraph 51).
43. As regards the role which consumer protection associations may play, it must be noted that Article 7(1) of Directive 93/13 requires the Member States to ensure that adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers (Case C‑472/10 Invitel [2012] ECR, paragraph 35). In that regard, it is apparent from Article 7(2) of the directive that the aforementioned means are to include the possibility for persons or organisations having a legitimate interest under national law in protecting consumers to take action in order to obtain a judicial decision as to whether contract terms drawn up for general use are unfair and, where appropriate, to have them prohibited (see Case C‑372/99 Commission v Italy  [2002] ECR I‑819, paragraph 14, and Invitel , paragraph 36).
44. The deterrent nature and dissuasive purpose of the prohibitory actions, together with their independence of any particular dispute, mean that such actions may be brought even though the terms which it is sought to have prohibited have not been used in specific contracts (see Commission v Italy , paragraph 15, and Invitel , paragraph 37).
45. However, as the Advocate General pointed out in point 62 of his Opinion, it must be noted that neither Directive 93/13 nor the directives which followed it, adding to the legislative framework of the protection of consumers, contain any provision governing the role which may or must be accorded to consumer protection associations in individual disputes involving a consumer. Thus, Directive 93/13 does not govern whether such associations must be entitled to intervene in support of consumers in such individual disputes.
46. It follows that, in the absence of European Union legislation concerning the possibility for consumer protection associations to intervene in individual disputes involving consumers, it is for the national legal order of each Member State to establish such rules, in accordance with the principles of procedural autonomy, provided, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by European Union law (principle of effectiveness).
47. As regards, first, the principle of equivalence, that principle requires that the national rule at issue be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action are similar (see, inter alia, Case C‑63/08 Pontin  [2009] ECR I‑10467, paragraph 45).
51. As regards, secondly, the principle of effectiveness, the Court has already 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. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see Case C‑413/12 Asociación de Consumidores Independientes de Castilla y León  [2013] ECR, paragraph 34 and the case-law cited).
52. In that regard, Article 38 of the Charter provides that European Union policies must ensure a high level of consumer protection. That requirement also applies to the implementation of Directive 93/13. However, since Directive 93/13 does not expressly provide for a right for consumer protection associations to intervene in individual disputes involving consumers, Article 38 of the Charter cannot, by itself, impose an interpretation of that directive which would encompass such a right.
54. As regards the possibility for a consumer protection association to rely on Article 47 of the Charter, it must be pointed out that the refusal to grant the association leave to intervene in proceedings involving a consumer does not affect its right to an effective judicial remedy to protect its rights as an association of that kind, including its rights to collective action as recognised by Article 7(2) of Directive 93/13.
55. Incidentally, it must be added that, under the national legislation at issue in the main proceedings, an association may directly represent such a consumer in any proceedings, including enforcement proceedings, if mandated to do so by the latter.
60. However, it is not the task of the Court of Justice, in preliminary ruling proceedings, to interpret national legislation or regulations (see, inter alia, Case C‑151/02 Jaeger  [2003] ECR I‑8389, paragraph 43, and Case C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraph 24 and the case-law cited).