RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen eV.
Date: 2013-03-21
25. It must be recalled that, as stated in Article 1(2) of Directive 93/13, contractual terms which reflect mandatory statutory or regulatory provisions are not subject to the provisions of the directive.
26. As stated in the 13th recital in the preamble to Directive 93/13, the exclusion in Article 1(2) of that directive extends to terms which reflect provisions of national law that apply between the parties to the contract independently of their choice or provisions that apply by default in the absence of other arrangements established by the parties.
28. As the Advocate General observes in point 47 of her Opinion, that exclusion of the application of the rules of Directive 93/13 is justified by the fact that, in the cases referred to in paragraphs 26 and 27 above, it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts.
41. To answer the question, it must first be recalled that the system of protection established 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, which 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 (Case C‑453/10 Pereničová and Perenič  [2012] ECR I‑0000, paragraph 27, and Case C‑472/10 Invitel  [2012] ECR I‑0000, paragraph 33).
42. In view of that weak position, Directive 93/13 prohibits, first, in Article 3(1), standard terms which, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
43. Directive 93/13 imposes, secondly, in Article 5, an obligation on the seller or supplier to draft terms in plain, intelligible language. The 20th recital in the preamble to Directive 93/13 specifies that the consumer must actually be given an opportunity to examine all the terms of the contract.
44. 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 he decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier.
45. The European Union legislature, moreover, also accorded particular importance to the provision of information to the consumer in the context of Directive 2003/55, in other words specifically in relation to contracts for the supply of gas. Thus Directive 2003/55, by virtue of Article 3(3), requires the Member States to ensure a high level of consumer protection with respect to transparency regarding contractual terms and conditions. In this respect, it is apparent from points (a), (c) and (d) of Annex A to that directive that the Member States are obliged in particular to adopt measures to ensure that those terms and conditions are fair and transparent, are stated in clear and comprehensible language and are notified to consumers before the contract is concluded, and that consumers receive transparent information on applicable prices and tariffs and on standard terms and conditions. The annex also specifies that the measures it mentions apply without prejudice to Directive 93/13.
46. With respect to a standard term such as that at issue in the main proceedings which allows the supply undertaking to vary unilaterally the charge for the gas supply, it must be observed that it follows both from the second sentence of point 2(b) and point (d) of the annex to Directive 93/13 and from point (b) of annex A to Directive 2003/55 that the legislature recognised, in the context of contracts of indeterminate length such as contracts for the supply of gas, the existence of a legitimate interest of the supply undertaking in being able to alter the charge for its service.
47. A standard term which allows such a unilateral adjustment must, however, meet the requirements of good faith, balance and transparency laid down by those directives.
48. It must be recalled that ultimately it is not for the Court but for the national court to determine in each particular case whether that is so. The jurisdiction of the Court extends to the interpretation of the provisions of those directives and to the criteria which the national court may or must apply when examining a contractual term in the light of those provisions, bearing in mind that it is for that court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case (see Case C‑137/08 VB Pénzügyi Lízing  [2010] ECR I‑10847, paragraph 44, and Invitel , paragraph 22).
49. As regards the assessment of a term that allows the supplier to alter unilaterally the charges for the service to be supplied, the Court has previously stated that it follows from Articles 3 and 5 of and points 1(j) and (l) and 2(b) and (d) of the annex to Directive 93/13 that it is of fundamental importance for that purpose, first, whether the contract sets out in transparent fashion the reason for and method of the variation of the charges for the service to be provided, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges and, secondly, whether consumers have the right to terminate the contract if the charges are in fact altered (see, to that effect, Invitel , paragraphs 24, 26 and 28).
50. With respect, in the first place, to the information to be given to the consumer, it is clear that that obligation to make the consumer aware of the reason for and method of the variation of those charges and his right to terminate the contract is not satisfied by the mere reference, in the general terms and conditions, to a legislative or regulatory act determining the rights and obligations of the parties. It is essential that the consumer is informed by the seller or supplier of the content of the provisions concerned (see, to that effect, Invitel , paragraph 29).
58. It must be recalled that, according to settled case-law, the interpretation which the Court, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, gives to a rule of European Union law clarifies and defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may and must be applied by the courts to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied (see, inter alia, Case 24/86 Blaizot and Others  [1988] ECR 379, paragraph 27; Case C‑402/03 Skov and Bilka  [2006] ECR I‑199, paragraph 50; Case C‑313/05 Brzeziński  [2007] ECR I‑513, paragraph 55; and Case C‑263/10 Nisipeanu , judgment of 7 July 2011, paragraph 32).
59. Only in altogether exceptional cases may the Court, in application of the general principle of legal certainty inherent in the legal order of the European Union, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned have acted in good faith and that there is a risk of serious difficulties (see, inter alia, Skov and Bilka , paragraph 51; Brzeziński , paragraph 56; Case C‑2/09 Kalinchev  [2010] ECR I‑4939, paragraph 50; and Case C‑263/11 Rēdlihs  [2012] ECR I‑0000, paragraph 59).
60. As regards the risk of serious difficulties, it must be observed, to begin with, that in the present case the interpretation of European Union law given by the Court in this judgment relates to the concept of ‘unfair term’ used in Article 3(1) of Directive 93/13 and to the criteria which the national court may or must apply when examining the contractual term at issue from the point of view of the provisions of Directive 93/13, taking into account the provisions of Directive 2003/55. It is for the national court to determine in the light of those criteria whether a particular contractual term is actually unfair in the circumstances of the case ( VB Pénzügyi Lízing , paragraph 44, and Invitel , paragraph 22).
61. In those circumstances, the financial consequences for gas supply undertakings in Germany that have concluded special contracts with consumers for the supply of natural gas cannot be determined on the sole basis of the interpretation of European Union law given by the Court in the present case (see, by analogy, Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 131).