31.7.2017   

EN

Official Journal of the European Union

C 249/18

1.

Are Article 3(2) and Article 4(1) of [Directive 93/13/EEC] (1) to be interpreted and applied to the effect that, in circumstances like those in the main proceedings — as submitted by the applicant at first instance, appellant on appeal (‘the appellant’) who referred to national case-law (judgment in cassation No 1646 of 18 April of the Înalta Curte de Casație și Justiție, Secția comercială (Supreme Court of Cassation, Commercial Division) and civil appellate judgment No 466 of the Curtea de Apel Bacău (Bacău Court of Appeal), Case 3364/110/2014), that is, that proof of the negotiated nature of all the clauses of the preliminary contract of sale concluded by the parties is evidenced by the mere fact that the respondents acting as consumers had agreed to those clauses, by signing the preliminary contract drafted in advance by the property developer and subsequently authentified by a notary — in principle, the presumption that the clauses drafted in advance by the trader were not of a negotiated nature had been rebutted?

2.

Do clauses of the same nature in preliminary contracts of sale drafted in advance by property developers who are, as is the appellant, traders, and in particular points 3.2.2. and 7.1 of the preliminary contract of sale concluded by the parties to the dispute, containing a ‘fourth-degree’ forfeiture clause and a penalty clause exclusively in favour of the promisor-vendor, fall, in principle, within the scope of the clauses listed in paragraphs d), e), f) and i) of the Annex to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts?

3.

Is Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts to be interpreted and applied to the effect that, if the answer to the second question referred to the Court is in the affirmative, national courts may not amend (are prohibited from amending) the clauses held to be unfair, namely, by holding that the ‘fourth-degree’ forfeiture clause may operate under other conditions than those expressly provided for in the preliminary contract (for example, not in the event of any late or missed payment whatsoever regardless of the amount, but only for late or missed payments of a specified amount that the court, case by case, considers to be substantial), and to reduce (limit) the amount of the penalty clause to the amount paid as a deposit by the promisee-purchaser until such time as the forfeiture clause is triggered? In such cases, may the national courts limit themselves merely to ruling that those clauses do not apply to the consumer in question?