Jana Pereničová and Vladislav Perenič v SOS financ spol. s r. o.
Date: 2012-03-15
27. In order to answer this 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 trader 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 trader without being able to influence the content of those terms (Case C‑168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 25; Case C‑243/08 Pannon GSM  [2009] ECR I‑4713, paragraph 22; and Case C‑40/08 Asturcom Telecomunicaciones [2009] ECR I‑9579, paragraph 29).
28. In view of that weak position, Article 6(1) of Directive 93/13 requires Member States to lay down that unfair terms ‘shall, as provided for under their national law, not be binding on the consumer’. As is apparent from the case‑law, that is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them (see Mostaza Claro , paragraph 36; Asturcom Telecomunicaciones , paragraph 30; and Case C‑137/08 VB Pénzügyi Lízing [2010] ECR I‑0000, paragraph 47).
29. As regards the effects of a finding that terms of a contract are unfair on the validity of the contract in question, it must be pointed out that, under Article 6(1) in fine of Directive 93/13, ‘the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms’.
30. In this context, national courts which find that terms of a contract are unfair are required under Article 6(1) of Directive 93/13, first, to draw all the consequences that follow under national law, so that the consumer is not bound by those terms (see Asturcom Telecomunicaciones , paragraphs 58 and 59, and order in Case C‑76/10 Pohotovosť  [2010] ECR I‑0000, paragraph 62), and, secondly, to assess whether the contract in question can continue to exist without those unfair terms (see order in Pohotovosť , paragraph 61).
31. As follows from the case-law cited in paragraph 28 above, and as the Advocate General observes in point 63 of her Opinion, the objective pursued by the European Union legislature in connection with Directive 93/13 consists in restoring the balance between the parties while in principle preserving the validity of the contract as a whole, not in abolishing all contracts containing unfair terms.
32. As regards the criteria for assessing whether a contract can indeed continue to exist without the unfair terms, it must be noted 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, so that, as the Advocate General observes in points 66 to 68 of her Opinion, the situation of one of the parties to the contract, in this case the consumer, cannot be regarded as the decisive criterion determining the fate of the contract.
33. Consequently, Article 6(1) of Directive 93/13 cannot be interpreted as meaning that, when assessing whether a contract containing one or more unfair terms can continue to exist without those terms, the court hearing the case can base its decision solely on a possible advantage for the consumer of the annulment of the contract as a whole.
34. That being so, it must none the less be observed that Directive 93/13 carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while allowing Member States the option of giving consumers a higher level of protection than that for which the directive provides. Thus Article 8 of the directive expressly provides that Member States may ‘adopt or retain the most stringent provisions compatible with the Treaty in the area covered by [the directive], to ensure a maximum degree of protection for the consumer’ (see Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid  [2010] ECR I‑4785, paragraphs 28 and 29).
35. Directive 93/13 does not therefore preclude a Member State from laying down, in compliance with European Union law, national legislation under which a contract concluded between a trader and a consumer which contains one or more unfair terms may be declared void as a whole where that will ensure better protection of the consumer.
38. In order to answer that question, it must first be recalled that Article 2(d) of Directive 2005/29, using a particularly wide formulation, defines the term ‘commercial practice’ as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (Case C‑304/08 Plus Warenhandelsgesellschaft  [2010] ECR I‑217, paragraph 36, and Case C‑540/08 Mediaprint Zeitungs- und Zeitschriftenverlag [2010] ECR I‑0000, paragraph 17).
40. Finally, as stated in Article 6(1) of Directive 2005/29, a commercial practice is regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer in relation to one or more of the elements listed in Article 6(1), and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise. The elements referred to in that provision include the price or the manner in which the price is calculated.
41. A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an APR lower than the real rate constitutes false information as to the total cost of the credit and hence the price referred to in Article 6(1)(d) of Directive 2005/29. In so far as the indication of such an APR causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, which is for the national court to ascertain, that false information must be regarded as a ‘misleading’ commercial practice under Article 6(1) of the directive.
42. As regards the effect of that finding on the assessment of the unfairness of the terms of that contract from the point of view of Article 4(1) of Directive 93/13, it must be observed that that provision gives a particularly wide definition of the criteria for making such an assessment, by expressly including ‘all the circumstances’ attending the conclusion of the contract in question.
44. That element, however, is not such as to establish, automatically and on its own, that the contested terms are unfair. It is for the referring court to decide on the application of the general criteria set out in Articles 3 and 4 of Directive 93/13 to a specific term, which must be considered in relation to all the circumstances of the particular case (see, to that effect, Case C‑237/02 Freiburger Kommunalbauten  [2004] ECR I‑3403, paragraphs 19 to 22; Pannon GSM , paragraphs 37 to 43; VB Pénzügyi Lízing , paragraphs 42 and 43; and order in Pohotovosť , paragraphs 56 to 60).