Keywords
Summary

Keywords

1. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13

(Council Directive 93/13, Art. 6)

2. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13

(Council Directive 93/13)

3. Approximation of laws – Unfair terms in consumer contracts – Directive 93/13

(Council Directive 93/13, Art. 3)

Summary

1. Article 6(1) of Council Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

The aim of Article 6 of that directive, which is to strengthen consumer protection, would not be achieved if the consumer were himself obliged to raise the unfairness of contractual terms. In addition, effective protection of the consumer may be attained only if the national court acknowledges that it has power to evaluate terms of this kind of its own motion.

(see paras 23, 28, operative part 1)

2. The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non‑application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

The court seised of the action is required to ensure the effectiveness of the protection intended to be given by the provisions of Directive 93/13 on unfair terms in consumer contracts. Consequently, the role thus attributed to the national court by Community law in this area is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task, including when it is assessing whether it has territorial jurisdiction. In carrying out that obligation, the national court is not, however, required under that directive to exclude the possibility that the term in question may be applicable, if the consumer, after having been informed of it by that court, does not intend to assert its unfair or non-binding status.

(see paras 32-33, 35, operative part 2)

3. It is for the national court to determine whether a contractual term, such as a term conferring jurisdiction, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13 on unfair terms in consumer contracts. In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business, may be considered to be unfair.

(see para. 44, operative part 3)