Jean-Claude Van Hove v CNP Assurances SA.
Date: 2015-04-23
26. At the outset, it must first be recalled that, according to established case-law, 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 (see, inter alia, judgment in Kušionová , C‑34/13, EU:C:2014:2189, paragraph 48 and the case-law cited).
27. Secondly, as regards such a position of weakness, Directive 93/13 requires 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. Accordingly, it is for the national court to determine, taking account of the criteria laid down in Articles 3(1) and 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 (see judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 40 and the case-law cited).
28. Likewise, although it is for the referring court alone to rule on the classification of those terms in accordance with the particular circumstances of the case, the fact remains that the Court has jurisdiction to elicit from the provisions of Directive 93/13, in this case the provisions of Article 4(2) thereof, the criteria that the national court may or must apply when examining contractual terms (judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 45).
31. The Court has already held that that provision must be strictly interpreted, since it lays down an exception to the mechanism for reviewing the substance of unfair terms, such as that provided for by the system of consumer protection put in place by Directive 93/13 (judgments in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 42, and Matei , C‑143/13, EU:C:2015:127, paragraph 49).
33. Contractual terms falling within the concept of ‘the main subject-matter of the contract’, within the meaning of Article 4(2) of Directive 93/13, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it (see, to that effect, judgments in Caja de Ahorros y Monte de Piedad de Madrid , C‑484/08, EU:C:2010:309, paragraph 34, and Kásler et Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 49). By contrast, terms ancillary to those that define the very essence of the contractual relationship cannot fall within the concept of ‘the main subject-matter of the contract’, within the meaning of that provision (judgments in Kásler et Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraph 50, and Matei , C‑143/13, EU:C:2015:127, paragraph 54).
34. As regards the question whether a term falls within the main subject-matter of an insurance contract, it must be stated, first, that according to the case-law of the Court, the essentials of an insurance transaction are that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded (judgments in CPP , C‑349/96, EU:C:1999:93, paragraph 17; Skandia , C‑240/99, EU:C:2001:140, paragraph 37; and Commission v Greece , C‑13/06, EU:C:2006:765, paragraph 10).
37. In that regard, the Court has had occasion to hold that the examination of a contractual term, in order to determine whether that term falls within the concept of the ‘main subject-matter of the contract’ within the meaning of Article 4(2) of Directive 93/13, must be carried out having regard to the nature, general scheme and the stipulations of the contract and its legal and factual context (see, to that effect, judgment in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraphs 50 and 51).
39. If the referring court were to consider that that term forms part of the main subject-matter of the contractual framework, that court must also determine whether that term has been drafted by the seller or supplier in plain, intelligible language (see, to that effect, judgment in Caja de Ahorros y Monte de Piedad de Madrid , C‑484/08, EU:C:2010:309, paragraph 32, and order in Pohotovosť , C‑76/10, EU:C:2010:685, paragraph 72).
The concept of ‘plain, intelligible language’
40. The Court has made it clear that the requirement of transparency of contractual terms, laid down by Directive 93/13, cannot be reduced merely to their being formally and grammatically intelligible. On the contrary, as 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, in particular, his level of knowledge, that requirement of transparency is to be interpreted broadly (see, to that effect, judgments in Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraphs 71 and 72, and Matei , C‑143/13, EU:C:2015:127, paragraph 73).
41. Of fundamental importance to the consumer, therefore, for the purpose of complying with the requirement of transparency, is not only (i) the information given prior to the conclusion of the contract concerning the conditions as to liability, but also (ii) the information given concerning the specific features of the arrangements for covering the loan repayments payable to the lender in the event of the borrower’s total incapacity for work and the relationship between those arrangements and the arrangements laid down in respect of other contractual terms, so that that consumer is in a position to evaluate, on the basis of plain, intelligible criteria, the economic consequences for him which derive from it. That is so since the consumer will decide, in the light of those two factors, whether he wishes to be contractually bound by agreeing to the terms previously drawn up by the seller or supplier (see, by analogy, judgments in RWE Vertrieb , C‑92/11, EU:C:2013:180, paragraph 44, Kásler and Káslerné Rábai , C‑26/13, EU:C:2014:282, paragraphs 70 and 73; and Matei , C‑143/13, EU:C:2015:127, paragraph 74).
50. Therefore, the answer to the question referred is that Article 4(2) of Directive 93/13 must be interpreted as meaning that a term of an insurance contract intended to ensure that loan repayments payable to the lender will be covered in the event of the borrower’s total incapacity for work falls within the exception set out in that provision only where the referring court finds:
– first, that, having regard to the nature, general scheme and the stipulations of the contractual framework of which it forms part, and to its legal and factual context, that term lays down an essential component of that contractual framework, and, as such, characterises it, and,
– secondly, that that term is drafted in plain, intelligible language, that is to say that it is not only grammatically intelligible to the consumer, but also that the contract sets out transparently the specific functioning of the arrangements to which the relevant term refers and the relationship between those arrangements and the arrangements laid down in respect of other contractual terms, so that that consumer is in a position to evaluate, on the basis of precise, intelligible criteria, the economic consequences for him which derive from it.
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