Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt.
Date: 2012-04-26
22. It should be noted, in this regard, that the jurisdiction of the Court of Justice extends to the interpretation of the concept of ‘unfair term’ used in Article 3(1) of the Directive and in the annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of the Directive, 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 (Case C‑137/08 VB Pénzügyi Lízing [2010] ECR I‑10847, paragraph 44). It is thus clear that the Court of Justice must limit itself, in its response, to providing the referring court with the indications which the latter must take into account in order to assess whether the term at issue is unfair.
23. In accordance with Article 4(2) of the Directive, the assessment of the unfair nature of terms is to relate neither to the definition of the main subject-matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as those terms are in plain and intelligible language. However, this exclusion cannot apply to a term relating to a mechanism for amending the prices of the services provided to the consumer.
24. With regard to a contract term providing for an amendment of the total price of the service provided to the consumer, it should be pointed out that, in light of points 1(j) and (l) and 2(b) and (d) of the annex to the Directive, the reason for and the method of the variation of the aforementioned price must, in particular, be set out, the consumer having the right to terminate the contract.
25. That annex, to which Article 3(3) of the Directive refers, contains only an indicative and non-exhaustive list of terms which may be regarded as unfair (see Case C‑243/08 Pannon GSM  [2009] ECR I‑4713, paragraphs 37 and 38; VB Pénzügyi Lízing , paragraph 42; and order in Case C‑76/10 Pohotovosť  [2010] ECR I‑11557, paragraphs 56 and 58).
26. If the content of the annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless an essential element on which the competent court may base its assessment as to the unfair nature of that term. In the present case, it is clear from a reading of the provisions of the annex to the Directive, referred to in paragraph 24 of the present judgement, that, in assessing the unfair nature of a term such as that at issue in the main proceedings, the question whether the reasons for, or the method of, the variation of the fees connected with the service provided were specified and whether the consumer had the right to terminate the contract is particularly relevant.
28. Consequently, in the assessment of the ‘unfair’ nature of a term, within the meaning of Article 3 of the Directive, the possibility for the consumer to foresee, on the basis of clear, intelligible criteria, the amendments, by a seller or supplier, of the GBC with regard to the fees connected to the service to be provided is of fundamental importance.
29. Where certain aspects of the method of amendment of the fees connected with the service to be provided are specified by mandatory statutory or regulatory provisions within the meaning of Article 1(2) of the Directive, or where those provisions provide, for the consumer, the right to terminate the contract, it is essential that the consumer be informed of those provisions by the seller or supplier.
33. In order to answer the first part of this question, it is first necessary to bear in mind that the system of protection established by the Directive 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‑453/10 Pereničová and Perenič , paragraph 27 and the case‑law cited).
34. In the context of actions involving an individual consumer, the Court has held that, in view of that weak position, Article 6(1) of the Directive requires Member States to specify 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 ( Pereničová and Perenič , paragraph 28 and the case‑law cited).
35. With regard to actions for an injunction brought in the public interest, such as that here at issue in the main proceedings, it should be noted that, while the Directive does not seek to harmonise the penalties applicable in the event of a term being found to be unfair in the context of those actions, Article 7(1) of the Directive nevertheless 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.
36. As is apparent from Article 7(2) of the Directive, 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).
37. In this respect, it should be added that the deterrent nature and dissuasive purpose of the measures to be adopted, 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).
39. In the main proceedings, the national legislation provides that the declaration, by a court, of the invalidity of a term appearing in the GBC of consumer contracts is to apply to any consumer who has concluded a contract with a seller or supplier which includes that term. As is apparent from the case-file in the main proceedings, the subject-matter of the dispute concerns the use by the supplier of standard terms featuring the disputed term in contracts concluded with numerous consumers. It should be noted that, as the Advocate General pointed out in points 57 to 61 of her Opinion, national legislation such as that referred to in the present paragraph satisfies the requirements of Article 6(1), read in conjunction with Article 7(1) and (2), of the Directive.
40. The application of a penalty of invalidity of an unfair term with regard to all consumers who have concluded a consumer contract to which the same GBC apply ensures that those consumers will not be bound by that term, but does not exclude the application of other types of adequate and effective penalties provided for by national legislation.
41. As regards the second part of the first question, concerning the consequences that national courts must draw from a finding, in an action for an injunction, as to the unfair nature of a term included in the GBC of consumer contracts, it must be noted at the outset that the national court’s power to determine of its own motion whether a term is unfair constitutes in itself a means of achieving the result sought by Article 7 (see Case C‑168/05 Mostaza Claro  [2006] ECR I‑10421, paragraph 27 and the case‑law cited). The nature and importance of the public interest underlying the protection which the Directive confers on consumers justify, moreover, the national court being required to assess of its own motion whether a contractual term is unfair (see Mostaza Claro , paragraph 38).
42. National courts which find that a term included in GBC is unfair are required under Article 6(1) of the Directive to draw all the consequences that follow under national law, so that the consumer is not bound by that term (see Pereničová and Perenič , paragraph 30 and case‑law cited).