Case C‑537/13

Birutė Šiba

v

Arūnas Devėnas

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

‛Reference for a preliminary ruling — Directive 93/13/EEC — Scope — Consumer contracts — Contract for the provision of legal services concluded between a lawyer and a consumer’

Summary — Judgment of the Court (Ninth Chamber), 15 January 2015

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Contract for the provision of legal services concluded between a lawyer and a natural person — Included

   (Council Directive 93/13, Recital 10 and Art. 2(b) and (c))

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim — Protection of the weaker party — Application in contracts for the provision of legal services

   (Council Directive 93/13, Recital 10)

3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Effect of the public or private nature of the services which are the subject of the contract — None — Exception — Terms negotiated in contracts for the provision of legal services

   (Council Directive 93/13, Recitals 10 and 14 and Art. 2(c))

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Assessment by the national court — Criteria

   (Council Directive 93/13, Art. 4(1) and 5)

1.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as applying to standard form contracts for legal services concluded by a lawyer with a natural person acting for purposes which are outside his trade, business or profession.

   As the 10th recital in the preamble to Directive 93/13 states, the uniform rules of law in the matter of unfair terms should apply to ‘all contracts’ concluded between sellers or suppliers and consumers, as defined in Article 2(b) and (c) thereof. It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that Directive 93/13 defines the contracts to which it applies. Thus, a lawyer who provides a legal service for a fee, in the course of his professional activities, to a natural person acting for private purposes is a ‘seller or supplier’ within the meaning of Article 2(c) of Directive 93/13. The contract relating to the supply of such a service is, therefore, covered by that directive.

   (see paras 20, 21, 24, 35, operative part)

2.  See the text of the decision.

   (see paras 22, 23)

3.  In light of the objective of consumer protection pursued by Directive 93/13, on unfair terms in consumer contracts, the public or private nature of the activities of the seller or supplier or his specific task cannot determine whether or not that directive is applicable. In that connection, Article 2(c) of Directive 93/13 refers to any purposes relating to his trade, business or profession, whether publicly owned or privately owned’ and as recital 14 in its preamble states, the directive also applies to trades, business or professions of a public nature.

   Therefore, as regards legal services provided for a fee by a lawyer, the fact that, in the course of their activities, lawyers are required to ensure compliance with the obligation of confidentiality in their relations with ‘client-consumers’ does not constitute an obstacle to the application of Directive 93/13 with regard to standard terms of contracts for the provision of legal services. Contractual terms which have not been individually negotiated, in particular those which are drafted for general use, do not contain, as such, personal information relating to lawyers’ clients, disclosure of which might undermine the confidentiality of the legal profession. It is true that the specific drafting of a contractual term, in particular that concerning the arrangements for payment of the lawyer’s fees might, at least incidentally, reveal certain aspects of the relationship between the lawyer and his client which should remain confidential. However, such a term would be individually negotiated and, therefore, excluded from the application of Directive 93/13.

   (see paras 25, 28, 30-32)

4.  In order to determine the unfairness of contracts subject to Directive 93/13 on unfair terms in consumer contracts, the nature of the services which are the subject-matter of the contracts subject to Directive 93/13 must be taken into account, in accordance with Article 4(1) thereof, read in the light of the 18th recital in the preamble to the directive. That assessment must be conducted by the national court and take account of that nature and refer, at the time of conclusion of the contract, to all of the circumstances attending its conclusion.

   Thus, as regards contracts relating to legal services, it is for the referring court to take account of the specific nature of those services in its assessment as to whether the contractual terms are plain and intelligible, in accordance with the first sentence of Article 5 of Directive 93/13, and to give them, in case of doubt, pursuant to the second sentence of that article, the interpretation most favourable to the consumer.

   (see paras 33, 34)

Case C‑537/13

Birutė Šiba

v

Arūnas Devėnas

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

‛Reference for a preliminary ruling — Directive 93/13/EEC — Scope — Consumer contracts — Contract for the provision of legal services concluded between a lawyer and a consumer’

Summary — Judgment of the Court (Ninth Chamber), 15 January 2015

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Contract for the provision of legal services concluded between a lawyer and a natural person — Included

   (Council Directive 93/13, Recital 10 and Art. 2(b) and (c))

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim — Protection of the weaker party — Application in contracts for the provision of legal services

   (Council Directive 93/13, Recital 10)

3. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Effect of the public or private nature of the services which are the subject of the contract — None — Exception — Terms negotiated in contracts for the provision of legal services

   (Council Directive 93/13, Recitals 10 and 14 and Art. 2(c))

4. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Unfair term within the meaning of Article 3 — Assessment by the national court — Criteria

   (Council Directive 93/13, Art. 4(1) and 5)

1.  Directive 93/13 on unfair terms in consumer contracts must be interpreted as applying to standard form contracts for legal services concluded by a lawyer with a natural person acting for purposes which are outside his trade, business or profession.

   As the 10th recital in the preamble to Directive 93/13 states, the uniform rules of law in the matter of unfair terms should apply to ‘all contracts’ concluded between sellers or suppliers and consumers, as defined in Article 2(b) and (c) thereof. It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that Directive 93/13 defines the contracts to which it applies. Thus, a lawyer who provides a legal service for a fee, in the course of his professional activities, to a natural person acting for private purposes is a ‘seller or supplier’ within the meaning of Article 2(c) of Directive 93/13. The contract relating to the supply of such a service is, therefore, covered by that directive.

   (see paras 20, 21, 24, 35, operative part)

2.  See the text of the decision.

   (see paras 22, 23)

3.  In light of the objective of consumer protection pursued by Directive 93/13, on unfair terms in consumer contracts, the public or private nature of the activities of the seller or supplier or his specific task cannot determine whether or not that directive is applicable. In that connection, Article 2(c) of Directive 93/13 refers to any purposes relating to his trade, business or profession, whether publicly owned or privately owned’ and as recital 14 in its preamble states, the directive also applies to trades, business or professions of a public nature.

   Therefore, as regards legal services provided for a fee by a lawyer, the fact that, in the course of their activities, lawyers are required to ensure compliance with the obligation of confidentiality in their relations with ‘client-consumers’ does not constitute an obstacle to the application of Directive 93/13 with regard to standard terms of contracts for the provision of legal services. Contractual terms which have not been individually negotiated, in particular those which are drafted for general use, do not contain, as such, personal information relating to lawyers’ clients, disclosure of which might undermine the confidentiality of the legal profession. It is true that the specific drafting of a contractual term, in particular that concerning the arrangements for payment of the lawyer’s fees might, at least incidentally, reveal certain aspects of the relationship between the lawyer and his client which should remain confidential. However, such a term would be individually negotiated and, therefore, excluded from the application of Directive 93/13.

   (see paras 25, 28, 30-32)

4.  In order to determine the unfairness of contracts subject to Directive 93/13 on unfair terms in consumer contracts, the nature of the services which are the subject-matter of the contracts subject to Directive 93/13 must be taken into account, in accordance with Article 4(1) thereof, read in the light of the 18th recital in the preamble to the directive. That assessment must be conducted by the national court and take account of that nature and refer, at the time of conclusion of the contract, to all of the circumstances attending its conclusion.

   Thus, as regards contracts relating to legal services, it is for the referring court to take account of the specific nature of those services in its assessment as to whether the contractual terms are plain and intelligible, in accordance with the first sentence of Article 5 of Directive 93/13, and to give them, in case of doubt, pursuant to the second sentence of that article, the interpretation most favourable to the consumer.

   (see paras 33, 34)