Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen VZW v Susan Romy Jozef Kuijpers.
Date: 2018-05-17
26


For the purpose of replying to the question referred, it should be recalled that, 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 (Judgments of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 46 and the case-law cited; 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 19 and the case-law cited, and 7 December 2017, Banco Santander, C‑598/15, EU:C:2017:945, paragraph 36 and the case-law cited).
27


The Court of Justice has also held that, on account of that weaker position, Article 6(1) of the directive provides that unfair terms are not binding on the consumer. As is apparent from 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 (judgments of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 47 and the case-law cited; 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 20 and the case-law cited, and 26 January 2017, Banco Primus, C‑421/14, EU:C:2017:60, paragraph 41 and the case-law cited).
28


In order to guarantee the protection intended by the directive, the Court has also stated 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 (judgments of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 48 and the case-law cited; 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 21 and the case-law cited, and 14 April 2016, Sales Sinués and Drame Ba, C‑381/14 and C‑385/14, EU:C:2016:252, paragraph 23 and the case-law cited).
29


It is in the light of those considerations that the Court has held that, in the exercise of the functions incumbent upon it pursuant to the provisions of Directive 93/13, a national court is required to assess of its own motion whether a contractual term is unfair and, in so doing, correct the imbalance that exists between the consumer and the seller or supplier (see, to that effect, the judgments of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 38, and 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraphs 22 and 24, and the case-law cited).
30


Included within that obligation for the national court, is that of examining whether the contract containing the term which is the basis of the claim is within the scope of application of that directive (see, to that effect, the judgment of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 49, and, by analogy, the judgment of 4 June 2015, Faber, C‑497/13, EU:C:2015:357, paragraph 46). In order to examine of its own motion whether the terms in the contract in question are unfair the court must, as a preliminary matter, ascertain whether the contract falls within the scope of application of the directive.
31


Those obligations for the national court must be regarded as necessary for ensuring that the consumer enjoys effective protection, as guaranteed by Directive 93/13, in view in particular of the real risk that he is unaware of his rights or encounters difficulties in enforcing them (see, to that effect, the judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 28 and the case-law cited, and the order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 42).
32


The protection which the directive confers on consumers thus extends to cases in which a consumer who has concluded with a seller or supplier a contract containing an unfair term fails to raise the unfair nature of the term, whether because he is unaware of his rights or because he is deterred from enforcing them on account of the costs which judicial proceedings would involve (see, to that effect, the judgment of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 29 and the case-law cited, and the order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 43).
33


In respect of the implementation of those obligations by a national court giving judgment in default, it must be noted that, in the absence of EU legislation, the procedural rules governing appeal proceedings for safeguarding the rights that individuals derive from EU 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); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (see, by analogy, the judgment of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 42 and the case-law cited).
34


So far as concerns the principle of equivalence, to which the first question for a preliminary ruling implicitly refers and which is the only principle at issue in the present case, it must be pointed out that, as recalled in paragraph 27 above, Article 6(1) of Directive 93/13 is a mandatory provision (judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 43 and the case-law cited).
35


In addition, the Court of Justice has held that, in view of the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy. It must be held that that classification extends to all the provisions of the directive which are essential for the purpose of attaining the objective pursued by Article 6 thereof (judgment of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 44 and the case-law cited).
36


It follows that, where the national court has the power, under internal procedural rules, to examine of its own motion whether a claim is contrary to national rules of public policy, which, according to the information provided in the order for reference, is the case in the Belgian judicial system for a court giving judgment in default, it must also exercise that power for the purposes of assessing of its own motion, in the light of the criteria laid down in Directive 93/13, whether the disputed term on which the claim is based and the contract containing that term come within the scope of that directive and, if so, whether that term is unfair (see, by analogy, the judgment of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 45).
41


In that regard, it must be borne in mind, as the Court has consistently held, that when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of Directive 93/13 in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with EU law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of EU law when they determine the disputes before them (see, by analogy, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 79 and the case-law cited).
46


As the 10th recital of Directive 93/13 states, the uniform rules of law in the matter of unfair terms should apply to ‘all contracts’ concluded between ‘sellers or suppliers’ and ‘consumers’, as defined in Article 2(b) and (c) of that directive.
48


It is clear from the wording itself of that provision that the EU legislature intended a broad definition to be given to the notion of ‘seller or supplier’ (see, to that effect, the judgment of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 28 and the case-law cited).
49


In the first place, the use of the term ‘any’ in that provision shows that every natural or legal person must be regarded as a ‘seller or supplier’, within the meaning of Directive 93/13, when performing a professional activity.
50


In the second place, that same provision covers all professional activity, whether it is ‘publicly owned or privately owned’. Finally, as the fourteenth recital states, Directive 93/13 also applies to professional activities of a public nature (see, to that effect, the judgment of 15 January 2015, Šiba, C‑537/13, EU:C:2015:14, paragraph 25).
51


It follows that Article 2(c) of Directive 93/13 does not exclude from its scope of application entities that pursue a task in the public interest, nor those that are governed by public law (see, by analogy, the judgment of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C‑59/12, EU:C:2013:634, paragraph 32). Furthermore, as the Advocate General observed in paragraph 57 of her opinion, since tasks of a public nature and in the public interest are often conducted on a not-for-profit basis, the fact that a body is a not-for-profit organisation is irrelevant to the definition of the notion of ‘seller or supplier’, within the meaning of that provision.
53


It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that the directive defines the contracts to which it applies (judgments of 30 May 2013, Asbeek Brusseand de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 30, and of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 17 and the case-law cited).
54


That criterion corresponds to the idea, recalled in paragraph 26 above, upon which the system of protection implemented by that directive is based, namely that the consumer is in a weaker 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 (judgments of 30 May 2013, Asbeek Brusse andde Man Garabito, C‑488/11, EU:C:2013:341, paragraph 31, and of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 18 and the case-law cited).
55


It follows that the notion of ‘seller or supplier’, within the meaning of Article 2(c) of Directive 93/13 is a functional concept, requiring determination of whether the contractual relationship is amongst the activities that a person provides in the course of their trade, business or profession (see, by analogy, the order of 27 April 2017, Bachman, C‑535/16, not published, EU:C:2017:321, paragraph 36 and the case-law cited).
56


In the present case, the Belgian and Austrian governments submitted that as a higher educational establishment subsidised, for the main part, by public funds, the KdG could not be regarded as an undertaking, in accordance with the interpretation given to that notion in EU competition law and, hence, as a ‘seller or supplier’, for the purposes of Directive 93/13, given that the supply of tuition which it provides is not a ‘service’ within the meaning of Article 57 TFEU (see, to that effect, the judgment of 7 December 1993, Wirth, C‑109/92, EU:C:1993:916, paragraphs 16 and 17).
57


In that regard, it is clear from the case file before the Court that, in any event, the case in the main proceedings does not directly concern the task of an educational establishment such as the KdG. Rather, in issue is a service provided by that establishment, which is complementary and ancillary to its educational activity, consisting in offering, through a contract, an interest-free, instalment repayment plan in respect of sums due to it by a student. Such a supply is, by its nature, an agreement to provide payment facilities for an existing debt, and is, fundamentally a contract for credit.
58


Therefore, subject to the referring court verifying the elements referred to in the previous paragraph, it must be held that, by providing, in that contract, such a service which is complementary and ancillary to its educational activity, an establishment such as the KdG acts as a ‘seller or supplier’ within the meaning of Directive 93/13.
59


That interpretation is corroborated by the protective purpose of that directive. In the context of a contract such as that at issue in the main proceedings, there is, in principle, an inequality between the educational establishment and the student, owing to the asymmetry of information and expertise between the parties. Such an establishment has at its disposal a permanent organisation and expertise that the student, acting on a private basis, does not necessarily have available to him when faced incidentally with such a contract.