Ernst Georg Radlinger and Helena Radlingerová v Finway a.s.
Date: 2016-04-21
46


Those means must include provisions enabling consumers to be guaranteed effective judicial protection by making it possible for them to bring legal proceedings against the disputed contract including in the insolvency proceedings and under reasonable procedural conditions so that the exercise of their rights is not subject to conditions, in particular time limits or costs which make it excessively difficult or impossible to exercise the rights guaranteed by Directive 93/13 (see, to that effect, judgment of 1 October 2015 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 59).
48


According to the settled case-law of the Court, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of procedural autonomy, to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. On that basis, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 12 February 2015 in Baczó and Vizsnyiczai, C‑567/13, EU:C:2015:88, paragraphs 41 and 42 and the case-law cited).
50


As regards application of the principle of effectiveness, every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies. Moreover, the specific characteristics of court proceedings cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13 (see, to that effect, judgment of 10 September 2014 in Kušionová, C‑34/13, EU:C:2014:2189, paragraphs 52 and 53 and case-law cited).
52


In that context, it must be borne in mind that, in accordance with the settled case-law of the Court, the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary to that end (judgment of 1 October 2015 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 41 and the case-law cited).
53


In fact, the Court has held that, in order to guarantee the protection intended by Directive 93/13, the imbalance which exists between the consumer and the seller or supplier may be corrected by the court hearing such disputes only by positive action unconnected with the actual parties to the contract (see, to that effect, judgment of 27 February 2014 in Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 40 and the case-law cited).
57


Furthermore, although it is apparent from the order for reference that the national legislation at issue in the main proceedings permits a debtor seeking to contest an unsecured claim to rely only on the fact that the claim is either time-barred or has been paid, it must be recalled that a restriction on the power of the national court of its own motion to set aside unfair terms is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of Directive 93/13 (see, by analogy, judgment of 21 November 2002 in Cofidis, C‑473/00, EU:C:2002:705, paragraph 35).
61


It should be noted at the outset that the obligation to provide information, set out in Article 10(2) of Directive 2008/48, contributes to attaining the objective pursued by that directive, which, as can be seen from recitals 7 and 9 to that directive, consists in providing, as regards consumer credit, full and mandatory harmonisation in a number of key areas, which is regarded as necessary in order to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit (see, by analogy, judgment of 18 December 2014 in CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 21 and the case-law cited).
62


As regards question 2(a), it is appropriate to note that the Court has recalled on a number of occasions the obligation of national courts to examine of their own motion infringements of EU consumer protection legislation (see, to that effect, with regard to Directive 93/13, judgment of 4 June 2009 in Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 32; with regard to Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), judgment of 17 December 2009 in Martín Martín, C‑227/08, EU:C:2009:792, paragraph 29; and, with regard to Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12), judgment of 3 October 2013 in Duarte Hueros, C‑32/12, EU:C:2013:637, paragraph 39).
63


As the Advocate General has noted in points 51 et seq. of her Opinion, such a requirement is justified by the consideration that the system of protection, in accordance with the settled case-law of the Court, 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 judgment of 1 October 2005 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 39 and the case-law cited).
64


In that regard, information, before and at the time of concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is, in particular, on the basis of that information that the consumer decides whether he wishes to be bound by the conditions drafted in advance by the seller or supplier (see, to that effect, judgment of 16 January 2014 in Constructora Principado, C‑226/12, EU:C:2014:10, paragraph 25 and the case-law cited).
65


Furthermore, there is a real risk that the consumer, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect him (judgment of 4 June 2015 in Faber, C‑497/13, EU:C:2015:357, paragraph 42 and the case-law cited).
66


It follows therefrom that effective consumer protection could be achieved only if the national court were required, of its own motion, to examine compliance with the requirements which flow from EU law on consumer law (see, by analogy, judgment of 4 October 2007 in Rampion and Godard, C‑429/05, EU:C:2007:575, paragraph 61 and 65).
70


Since the national courts are required to ensure the effectiveness of consumer protection intended to be given by the provisions of Directive 2008/48, the role attributed to the national court by EU law in this area is not limited to a mere power to rule on the compliance with those requirements, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task (see, by analogy, judgment of 4 June 2009 in Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 32).
71


In addition, where the national court has, of its own motion, found an infringement of Article 10(2) of Directive 2008/48 it is not obliged, in order to be able to draw the consequences arising under national law from that infringement, to wait for the consumer to make an application to that effect, provided always that the principle of audi alteram partem has been complied with (see, by analogy, judgments of 21 February 2013 in Banif Plus Bank, C-472/11, EU:C:2013:88, paragraph 36, and of 1 October 2015 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 42).
74


Having regard to all the foregoing considerations, the answer to the second question is that Article 10(2) of Directive 2008/48 must be interpreted as meaning that it requires a national court hearing a dispute concerning claims based on a credit agreement within the meaning of that directive to examine of its own motion whether the obligation to provide information laid down in that provision has been complied with and to establish the consequences which follow under national law of any infringement of that obligation, provided that the penalties satisfy the requirements of Article 23 of that directive.
76


In that connection, it must be recalled that, under the third paragraph of Article 288 TFEU, the directive, while binding, as to the result to be achieved, upon each Member State to which it is addressed, leaves to the national authorities the choice of form and methods. Thus, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual (judgment of 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 37 and the case-law cited). Nonetheless the obligation on a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 288 TFEU and by the directive itself. That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (judgment of 24 June 2008 in Commune de Mesquer, C‑188/07, EU:C:2008:359, point 83 and the case-law cited).
77


In the present case, firstly, the obligation to examine ex officio the unfairness of certain terms and the presence of mandatory information in a credit agreement constitutes a procedural rule placed not on an individual but on the courts (see, by analogy, judgments of 10 September 2014 in Kušionová, C‑34/13, EU:C:2014:2189, paragraph 67, and 18 February 2016 in Finanmadrid EFC, C‑49/14, EU:C:2016:98, point 35 and the case-law cited).
79


Moreover, 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 2008/48 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 24 January 2012 in Dominguez, C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited).
84


Furthermore, in accordance with Article 3(g) of that directive, the total cost of the credit to the consumer covers all the costs which he is required to pay in connection with the credit agreement and which are known to the creditor. Finally, by virtue of Article 3(i) of that directive, the APR means the total cost of the credit to the consumer, expressed as an annual percentage of the total amount of credit, where applicable including the costs referred to in Article 19(2) of that directive.
85


Since the concept of the ‘total amount payable by the consumer’ is defined in Article 3(h) of Directive 2008/48 as being ‘the sum of the total amount of the credit and the total cost of the credit to the consumer’, it follows that the concepts of ‘total amount of the credit’ and of ‘total cost of the credit to the consumer’ are mutually exclusive and that, accordingly, the total amount of the credit cannot include any of the sums included in the total cost of the credit to the consumer.
90


As stated, in essence, in recitals 31 and 43 to Directive 2008/48, informing the consumer of the total cost of credit, in the form of an interest rate calculated according to a single mathematical formula, is of critical importance in this regard. Firstly, that information contributes to the openness of the market in that it enables the consumer to compare offers of credit. Secondly, it enables the consumer to assess the extent of his commitment (see, to that effect, judgment of 4 March 2004 in Cofinoga, C‑264/02, EU:C:2004:127, paragraph 26, and order of 16 November 2010 in Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 70).
94


In the assessment of any unfairness of a contractual term, Article 4(1) of Directive 93/13 states that the answer should be reached taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract (see, to that effect, order of 16 November 2010 in Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 59, and judgment of 9 July 2015 in Bucura, C‑348/14, EU:C:2015:447, paragraph 48).
95


Thus, and as the Advocate General noted in point 74 of her Opinion, it is necessary to assess the cumulative effect of all such terms of an agreement concluded between a consumer and a seller or supplier. Such an assessment is justified, since all those terms are applicable, regardless of whether the creditor actually insists that that they all be fully performed (see, by analogy, judgment of 10 September 2014 in Kušionová, C‑34/13, EU:C:2014:2189, paragraph 42).
97


The Court has recalled that the national courts are required only to exclude the application of an unfair contractual term in order that it does not produce binding effects with regard to the consumer, without being authorised to revise its content. The contract must continue in existence, in principle, without any amendment other than that resulting from the deletion of the unfair terms, in so far as, in accordance with the rules of domestic law, such continuity of the contract is legally possible (judgment of 21 January 2015 in Unicaja Banco and Caixabank, C‑482/13, C‑484/13, C‑485/13 and C‑487/13, EU:C:2015:21, paragraph 28 and the case-law cited).
98


That interpretation is, moreover, borne out by the objective and overall scheme of Directive 93/13. In this connection, given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, the directive requires Member States, as is apparent from Article 7(1) thereof, to provide for adequate and effective means ‘to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’. If it were open to the national court to revise the content of unfair terms included in such contracts, such a power would be liable to compromise attainment of the long-term objective of Article 7 of the directive, since it would weaken the dissuasive effect on sellers or suppliers of the straightforward non-application of those unfair terms with regard to the consumer (judgment of 30 May 2013 in Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 58 and the case-law cited).