Case C-488/11

Dirk Frederik Asbeek Brusse

and

Katarina de Man Garabito

v

Jahani BV

(Request for a preliminary ruling from the Gerechtshof te Amsterdam)

‛Directive 93/13/EEC — Unfair terms in consumer contracts — Residential tenancy agreement between a landlord acting on a commercial basis and a tenant acting on a non-commercial basis — Examination by the national court, of its own motion, as to whether a contractual term is unfair — Penalty clause — Annulment of the clause’

Summary — Judgment of the Court (First Chamber), 30 May 2013

1. EU law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 93/13

   (Council Directive 93/13)

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

   (Council Directive 93/13, Art. 6(1))

3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Exclusion provided for in respect of contractual terms which reflect mandatory statutory or regulatory provisions — Residential tenancy agreement between a landlord acting on a commercial basis and a tenant acting on a non-commercial basis — Application of the directive

   (Council Directive 93/13)

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract before it is unfair — Scope

   (Council Directive 93/13)

5. EU law — Direct effect — National procedural rules — Conditions under which applicable — Observance of the principles of equivalence and effectiveness

6. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Power of the national court to examine of its own motion whether a term is valid in the light of national rules of public policy — Consequence — Obligation on the national court to assess of its own motion whether a term is unfair in the light of the criteria laid down in the directive — Power of the national court to annul of its own motion a term which is contrary to national rules of public policy — Consequence — Obligation on the national court, after having invited each of the parties to set out its views on that matter, with the opportunity to challenge the views of the other party, to annul of its own motion a contractual term considered to be unfair in the light of the criteria laid down by the directive

   (Council Directive 93/13)

7. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a penalty clause is unfair — Scope — National legislation allowing the national court merely to reduce the amount of the penalty imposed on the consumer by that clause — Not permissible

   (Council Directive 93/13, Art. 6(1))

1.  See the text of the decision.

   (see para. 26)

2.  See the text of the decision.

   (see paras 31, 38)

3.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that, subject to contractual terms which reflect mandatory statutory or regulatory provisions set out by national law, which is a matter for the national court to ascertain, it applies to a residential tenancy agreement concluded between a landlord acting for purposes relating to his trade, business or profession and a tenant acting for purposes which do not relate to his trade, business or profession.

   The system of protection implemented by Directive 93/13 is particularly important in the case of a residential tenancy agreement concluded between, on the one hand, an individual acting on a non-commercial basis and, on the other hand, a real estate professional. The consequences of the inequality existing between the parties are aggravated by the fact that, from an economic perspective, such a contract relates to an essential need of the consumer, namely to obtain lodging, and involves sums which most frequently, for the tenant, represent one of the most significant items in his budget, while, from a legal perspective, this is a contract which, as a general rule, is covered by complex national rules about which individuals are often poorly informed.

   (see paras 32, 34, operative part 1)

4.  See the text of the decision.

   (see paras 39-41, 44, 46, 48-50, 52)

5.  See the text of the decision.

   (see paras 42, 43)

6.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that:

   —

   where a national court, before which an action has been brought by a seller or supplier against a consumer concerning the performance of a contract, has the power, under internal procedural rules, to examine of its own motion whether the term upon which the claim is based is contrary to national rules of public policy, it must, in the same way, where it has established that that term falls within the scope of that directive, assess of its own motion whether that term is unfair in the light of the criteria laid down in that directive;

   —

   where the national court has the power, under internal procedural rules, to annul of its own motion a term which is contrary to public policy or to a mandatory statutory provision the scope of which warrants such a sanction, it must, as a rule, after having invited each of the parties to set out its views on that matter, with the opportunity to challenge the views of the other party, annul of its own motion a contractual term which it has found to be unfair in the light of the criteria laid down by that directive. (see para. 53, operative part 2)

7.  Article 6(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that it does not allow the national court, in the case where it has established that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, merely, as it is authorised by national law, to reduce the amount of the penalty imposed on the consumer by that clause, but requires it to exclude the application of that clause in its entirety with regard to the consumer.

   (see para. 60, operative part 3)

Case C-488/11

Dirk Frederik Asbeek Brusse

and

Katarina de Man Garabito

v

Jahani BV

(Request for a preliminary ruling from the Gerechtshof te Amsterdam)

‛Directive 93/13/EEC — Unfair terms in consumer contracts — Residential tenancy agreement between a landlord acting on a commercial basis and a tenant acting on a non-commercial basis — Examination by the national court, of its own motion, as to whether a contractual term is unfair — Penalty clause — Annulment of the clause’

Summary — Judgment of the Court (First Chamber), 30 May 2013

1. EU law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 93/13

   (Council Directive 93/13)

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

   (Council Directive 93/13, Art. 6(1))

3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Exclusion provided for in respect of contractual terms which reflect mandatory statutory or regulatory provisions — Residential tenancy agreement between a landlord acting on a commercial basis and a tenant acting on a non-commercial basis — Application of the directive

   (Council Directive 93/13)

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Obligation on the national court to examine of its own motion whether a term in a contract before it is unfair — Scope

   (Council Directive 93/13)

5. EU law — Direct effect — National procedural rules — Conditions under which applicable — Observance of the principles of equivalence and effectiveness

6. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Power of the national court to examine of its own motion whether a term is valid in the light of national rules of public policy — Consequence — Obligation on the national court to assess of its own motion whether a term is unfair in the light of the criteria laid down in the directive — Power of the national court to annul of its own motion a term which is contrary to national rules of public policy — Consequence — Obligation on the national court, after having invited each of the parties to set out its views on that matter, with the opportunity to challenge the views of the other party, to annul of its own motion a contractual term considered to be unfair in the light of the criteria laid down by the directive

   (Council Directive 93/13)

7. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a penalty clause is unfair — Scope — National legislation allowing the national court merely to reduce the amount of the penalty imposed on the consumer by that clause — Not permissible

   (Council Directive 93/13, Art. 6(1))

1.  See the text of the decision.

   (see para. 26)

2.  See the text of the decision.

   (see paras 31, 38)

3.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that, subject to contractual terms which reflect mandatory statutory or regulatory provisions set out by national law, which is a matter for the national court to ascertain, it applies to a residential tenancy agreement concluded between a landlord acting for purposes relating to his trade, business or profession and a tenant acting for purposes which do not relate to his trade, business or profession.

   The system of protection implemented by Directive 93/13 is particularly important in the case of a residential tenancy agreement concluded between, on the one hand, an individual acting on a non-commercial basis and, on the other hand, a real estate professional. The consequences of the inequality existing between the parties are aggravated by the fact that, from an economic perspective, such a contract relates to an essential need of the consumer, namely to obtain lodging, and involves sums which most frequently, for the tenant, represent one of the most significant items in his budget, while, from a legal perspective, this is a contract which, as a general rule, is covered by complex national rules about which individuals are often poorly informed.

   (see paras 32, 34, operative part 1)

4.  See the text of the decision.

   (see paras 39-41, 44, 46, 48-50, 52)

5.  See the text of the decision.

   (see paras 42, 43)

6.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that:

   —

   where a national court, before which an action has been brought by a seller or supplier against a consumer concerning the performance of a contract, has the power, under internal procedural rules, to examine of its own motion whether the term upon which the claim is based is contrary to national rules of public policy, it must, in the same way, where it has established that that term falls within the scope of that directive, assess of its own motion whether that term is unfair in the light of the criteria laid down in that directive;

   —

   where the national court has the power, under internal procedural rules, to annul of its own motion a term which is contrary to public policy or to a mandatory statutory provision the scope of which warrants such a sanction, it must, as a rule, after having invited each of the parties to set out its views on that matter, with the opportunity to challenge the views of the other party, annul of its own motion a contractual term which it has found to be unfair in the light of the criteria laid down by that directive. (see para. 53, operative part 2)

7.  Article 6(1) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that it does not allow the national court, in the case where it has established that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, merely, as it is authorised by national law, to reduce the amount of the penalty imposed on the consumer by that clause, but requires it to exclude the application of that clause in its entirety with regard to the consumer.

   (see para. 60, operative part 3)