Case C‑119/15

Biuro podróży ‘Partner’ Sp. z o.o. sp.k. w Dąbrowie Górniczej

v

Prezes Urzędu Ochrony Konkurencji i Konsumentów

(Request for a preliminary ruling
from the Sąd Apelacyjny w Warszawie)

(References for a preliminary ruling — Directive 93/13/EEC — Directive 2009/22/EC — Consumer protection — Erga omnes effect of unfair terms entered in a public register — Financial penalty imposed on a seller or supplier having used a term held to be equivalent to a term in the register — Seller or supplier who was not a party to the proceedings giving rise to the declaration that the term in question was unfair — Article 47 of the Charter of Fundamental Rights of the European Union — Concept of ‘court or tribunal against whose decisions there is no judicial remedy under national law’)

Summary — Judgment of the Court (Fifth Chamber), 21 December 2016

1. Consumer protection—Unfair terms in consumer contracts—Directive 93/13—Means to prevent the use of unfair terms—National rules categorising as an unlawful act the use by a seller or supplier of terms considered equivalent to term that have been entered in a national registry—Lawfulness—Condition—Observance of the right to effective judicial protection—To be determined by the national court

   (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive2009/22, Arts 1 and 2; Council Directive 93/13, as amended by Council Directive 2011/83, Arts 6(1), 7, 8 and 8a)

2. Questions referred for a preliminary ruling—Reference to the Court—Questions of interpretation—Obligation to make a reference—Scope—National court or tribunal within the meaning of the third paragraph of Article 267 TFEU—Definition

   (Art. 267, third para., TFEU)

1.  Article 6(1) and Article 7 of Directive 93/13 on unfair terms in consumer contracts, read in conjunction with Articles 1 and 2 of Directive 2009/22 on injunctions for the protection of consumers’ interests and in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the use of standard contract terms with content identical to that of terms which have been declared unlawful by a judicial decision having the force of law and which have been entered in a national register of unlawful standard contract terms from being regarded, in relation to another seller or supplier which was not a party to the proceedings culminating in the entry in that register, as an unlawful act, provided, which it is for the referring court to verify, that that seller or supplier has an effective judicial remedy against the decision declaring the terms compared to be equivalent in terms of the question whether, in the light of all relevant circumstances particular to each case, those terms are materially identical, having regard in particular to their harmful effects for consumers, and against the decision fixing the amount of the fine imposed, where applicable.

   It cannot be disputed that the establishment of such a register is compatible with EU law. In that regard, it is apparent from the provisions of Directive 93/13, in particular Article 8 thereof, that the Member States may draw up lists of terms deemed to be unfair. Under Article 8a of that directive, as amended by Directive 2011/83, the Member States are required to inform the Commission when such lists are drawn up. It follows from those provisions that those lists or registers drawn up by national departments are, as a rule, done so in the interest of consumer protection under Directive 93/13. However, that register must be managed in a transparent manner in the interest not only of consumers, but also sellers or suppliers. That requirement implies inter alia that it must be structured in a clear manner, irrespective of the number of terms it contains. Moreover, the terms contained in the register concerned must be current, which means that the register must be carefully kept up to date and that, in keeping with the principle of legal certainty, terms that are no longer needed are removed promptly.

   Moreover under the principle of effective judicial protection, a seller or supplier on whom a fine is imposed due to the use of a term held to be equivalent to a term in a register must, in particular, have the possibility of challenging that sanction. That right to a remedy must be able to challenge both the assessment of the conduct considered to be unlawful and the amount of the fine fixed by the competent national body. In that context, the assessment made by the court having jurisdiction must not be restricted to merely conducting a formal comparison of the terms examined with those included in the register. On the contrary, that assessment consists in appraising the content of the terms in dispute, in order to determine whether, in the light of all the relevant circumstances specific to each case, those terms are materially identical to those included in the register.

   (see paras 36, 38-40, 42, 47, operative part 1)

2.  The third paragraph of Article 267 TFEU must be interpreted as meaning that a court whose decisions may be the subject matter of an appeal in cassation cannot be categorised as a ‘court or tribunal against whose decisions there is no judicial remedy under national law’.

   (see para. 54, operative part 2)