1.6.2013

Official Journal of the European Union

C 156/3

Judgment of the Court (First Chamber) of 21 March 2013 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — RWE Vertrieb AG v Verbraucherzentrale Nordrhein-Westfalen eV

(Case C-92/11) (1)

(Directive 2003/55/EC - Internal market in natural gas - Directive 93/13/EEC - Articles 1(2) and 3 to 5 - Contracts between suppliers and consumers - General conditions - Unfair terms - Unilateral alteration by the supplier of the price of the service - Reference to mandatory legislation designed for another category of consumers - Applicability of Directive 93/13/EEC - Obligation of use of plain and intelligible language and transparency)

2013/C 156/04

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: RWE Vertrieb AG

Defendant: Verbraucherzentrale Nordrhein-Westfalen eV

Re:

Request for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 1(2) and, in conjunction with point 1(j) and the second sentence of point 2(b) of the annex, of Articles 3 and 5 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p 29) — Interpretation of Article 3(3) of, in conjunction with points (b) and (c) of Annex A to, Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57) — Term establishing the right of the seller or supplier to vary unilaterally the price of the service by reference to binding rules designed to apply to a separate category of consumers — Applicability of Directive 93/13/EEC — Requirements relating to the obligation to use plain and intelligible wording and to the obligation of transparency

Operative part of the judgment

Article 1(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that that directive applies to provisions in general terms and conditions, incorporated into contracts concluded between a supplier and a consumer, which reproduce a rule of national law applicable to another category of contracts and are not subject to the national legislation concerned.

Articles 3 and 5 of Directive 93/13 in conjunction with Article 3(3) of Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC must be interpreted as meaning that, in order to assess whether a standard contractual term by which a supply undertaking reserves the right to vary the charge for the supply of gas complies with the requirements of good faith, balance and transparency laid down by those directives, it is of fundamental importance:

—

whether the contract sets out in transparent fashion the reason for and method of the variation of those charges, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges. The lack of information on the point before the contract is concluded cannot, in principle, be compensated for by the mere fact that consumers will, during the performance of the contract, be informed in good time of a variation of the charges and of their right to terminate the contract if they do not wish to accept the variation; and

—	whether the right of termination conferred on the consumer can actually be exercised in the specific circumstances.

It is for the national court to carry out that assessment with regard to all the circumstances of the particular case, including all the general terms and conditions of the consumer contracts of which the term at issue forms part.

(1) OJ C 211, 16.7.2011.