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Document 62008CC0484

Opinion of Advocate General Trstenjak delivered on 29 October 2009.
Caja de Ahorros y Monte de Piedad de Madrid v Asociación de Usuarios de Servicios Bancarios (Ausbanc).
Reference for a preliminary ruling: Tribunal Supremo - Spain.
Directive 93/13/EEC - Consumer contracts - Terms defining the main subject-matter of the contract - Assessment by the courts as to their unfairness - Excluded - More stringent national provisions designed to afford a higher level of consumer protection.
Case C-484/08.

Thuarascálacha na Cúirte Eorpaí 2010 I-04785

ECLI identifier: ECLI:EU:C:2009:682

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 29 October 2009 1(1)

Case C‑484/08

Caja de Ahorros y Monte de Piedad de Madrid

v

Asociación de Usuarios de Servicios Bancarios (Ausbanc)

(Reference for a preliminary ruling from the Tribunal Supremo (Spain))

(Consumer protection – Directive 93/13 /EEC – Unfair terms in consumer contracts – Article 4(2) – Assessment of unfairness of terms relating to the main subject-matter of the contract – Article 8 – Minimum harmonisation – More stringent national provisions designed to ensure a higher level of consumer protection – Differences in approach to full harmonisation)






Table of contents


I –  Introduction

II –  Legal context

A – Community law

B – National law

III –  Facts, main proceedings and questions referred

IV –  Proceedings before the Court

V –  Main arguments of the parties

VI –  Legal assessment

A – Introductory observations

B – Admissibility of the reference

C – Examination of the questions referred

1. First and second questions

a) Applicability of Article 8 of Directive 93/13

i) Existence of a more stringent national provision

ii) Outline of the scope of Directive 93/13

– Scope ratione personae and ratione materiae

– Interpretation of Article 4(2) of Directive 93/13

b) Extent of the power conferred by Article 8 of Directive 93/13

i) Non-mandatory nature of Article 4(2)

ii) Minimum harmonisation

c) Conclusion

2. Third question

a) Legal assessment in the light of the Community objectives

b) Legal assessment by reference to implementation provisions

i) Competition rules

ii) Fundamental freedoms

c) Conclusion

VII –  Conclusion

I –  Introduction

1.        This reference for a preliminary ruling from the Spanish Tribunal Supremo (Supreme Court) (‘the referring court’) lays before the Court three questions concerning the interpretation of Article 8 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, (2) in conjunction with Article 4(2) of that directive and Articles 2 EC, 3(1)(g) EC and 4(1) EC.

2.        From the legal perspective, the basic question arising in this case is whether the Member States of the Community can rely on Article 8 of Directive 93/13 in order, by way of derogation from Article 4(2) thereof, to extend the assessment as to whether contractual terms are unfair to contractual terms which relate either to ‘the main subject-matter of the contract’ or to ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods [to be supplied] in exchange’.

3.        This reference has been made in the context of proceedings initiated by the Asociación de Usuarios de Servicios Bancarios (the respondent on a point of law, ‘the respondent’), a legal person the object of which, as stated in its articles of association, is ‘to protect the legitimate interests of users of the services provided by credit institutions and financial credit companies’, against the credit institution Caja de Ahorros y Monte de Piedad de Madrid (the appellant on a point of law; ‘the appellant’). The respondent seeks the annulment, and an injunction restraining the use, of a so-called ‘rounding-up term’ which the appellant includes in the form of a standard contractual condition, drawn up in advance, in every loan agreement entered into with its customers for the purchase of residential property.

II –  Legal context

A –    Community law

4.        The 12th, 17th and 19th recitals in the preamble to Directive 93/13 are worded as follows:

‘… however, as they now stand, national laws allow only partial harmonisation to be envisaged; … in particular, only contractual terms which have not been individually negotiated are covered by this Directive; … Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive;

…

… for the purposes of this Directive, the annexed list of terms can be of indicative value only and, because of the cause of the minimal character of the Directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws;

…

… for the purposes of this Directive, assessment of unfair character shall not be made of terms which describe the main subject-matter of the contract nor the quality/price ratio of the goods or services supplied; … the main subject-matter of the contract and the price/quality ratio may nevertheless be taken into account in assessing the fairness of other terms; … it follows, inter alia, that in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer’s liability shall not be subject to such assessment since these restrictions are taken into account in calculating the premium paid by the consumer’.

5.        Article 3 of Directive 93/13 provides as follows:

‘(1)      A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

(2)      A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

(3)      The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’

6.        Article 4(2) of Directive 93/13 provides as follows:

‘Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject-matter of the contract nor to the adequacy of the price or remuneration, on the one hand, as against the services or goods [to be supplied] in exchange, on the other, in so far as these terms are in plain intelligible language.’

7.        Article 8 of Directive 93/13 reads as follows:

‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

B –    National law

8.        Article 10a(1) of General Law 26/1994 of 19 July 1984 for the protection of consumers and users (Ley 26/1994 general para la defensa de consumidores y usuarios), which was added by Law 7/1998 of 13 April 1998 on general contractual conditions, provides as follows in relation to the definition of unfair terms:

‘All those terms not individually negotiated which, contrary to the requirement of good faith, cause a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer, shall be regarded as unfair terms. In any event, the terms listed in the additional provision of this Law shall be regarded as unfair.’

9.        Article 8(2) of Law 7/1998 of 13 April 1998 on general contractual conditions requires the setting-aside of general terms which are unfair:

‘In particular, where a contract has been concluded with a consumer, general terms which are unfair shall be void, such terms being taken in all cases to be those defined in Article 10a and the first additional provision of General Law 26/1984 of 19 July 1984 for the protection of consumers and users.’

10.      Article 4(2) of Directive 93/13 has not been implemented in the Spanish legal system.

III –  Facts, main proceedings and questions referred

11.      The appellant concluded loan agreements with its customers for the purchase of residential properties which were secured by way of mortgages on those properties. In particular, the loan agreements provided for a nominal interest rate which was variable and adjustable periodically in accordance with the agreed reference interest rate. In addition, the loan agreements contained a standard contractual condition whereby the interest rate payable by the borrower was, from the first adjustment, to be rounded up to the next higher fraction whenever a fraction of 0.25% was exceeded in the event of variations.

12.      In the respondent’s opinion, such a term, which is known in banking practice as a ‘rounding-up term’, was not negotiated individually with borrowers and was therefore void under Article 8(2), in conjunction with Articles 1, 2 and 10a(1), of Spanish General Law 26/1984 of 19 July 1984 for the protection of consumers and users. On that basis, the respondent brought an action seeking annulment of the term and cessation of the conclusion of loan agreements containing the disputed term.

13.      The appellant sought the dismissal of the action. It contended that rounding up the interest rate is a rule for determining an essential element of the loan agreement. The nominal interest is the consideration which the borrower must pay for the capital which is made available. For that reason, it submitted, an assessment as to unfairness under Spanish law was contrary to Article 4(2) of Directive 93/13 inasmuch as such an assessment could not be made if the terms in question were drafted in plain, intelligible language.

14.      By decision of 11 September 2001, the Spanish court of first instance found that the ‘rounding-up term’ was incompatible with the Spanish Law on general contractual conditions. That decision was upheld on appeal by a ruling of the Audiencia Provincial (Provincial Court) Madrid of 10 October 2002. The appellant appealed on a point of law to the referring court.

15.      The Tribunal Supremo takes the view that it is necessary to clarify the meaning of Articles 4(2) and 8 of Directive 93/13, in conjunction with Articles 2 EC, 3(1)(g) EC and 4(1) EC, in order to assess their legal significance and the consequences of the non-implementation of the first-mentioned provision in the Spanish legal system, in the version relevant to the appeal. It has therefore stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

‘(1)      Must Article 8 of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts be construed as meaning that a Member State may provide in its legislation, for the benefit of consumers, that the assessment as to whether contractual terms are unfair is to be carried out also in respect of terms which, pursuant to Article 4(2) of the Directive, fall outside the scope of such an assessment?

(2)      Consequently, does Article 4(2) of Directive 93/13, read in conjunction with Article 8 thereof, preclude a Member State from providing in its legislation, for the benefit of consumers, that the assessment as to whether contractual terms are unfair is to be carried out also in respect of terms which relate to “the definition of the main subject-matter of the contract” or to “the adequacy of the price and remuneration, on the one hand, as against the services or goods [to be supplied] in exchange, on the other”, even where those terms are in plain, intelligible language?

(3)      Is an interpretation of Articles 8 and 4(2) of Directive 93/13 under which it is possible for a Member State to provide for assessment by the courts as to whether contractual terms are unfair, which are in plain, intelligible language and which define the main subject-matter of the contract or the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other, compatible with Articles 2 EC, 3(1)(g) EC and 4(1) EC?’

IV –  Proceedings before the Court

16.      The reference for a preliminary ruling, dated 20 October 2008, was received by the Court Registry on 11 November 2008.

17.      Written observations were received within the period prescribed by Article 23 of the Statute of the Court of the Justice from the parties to the main proceedings, the Governments of the Portuguese Republic, the Republic of Austria, the Federal Republic of Germany and the Kingdom of Spain, and from the Commission.

18.      At the hearing held on 10 September 2009, counsel for the parties to the main proceedings, the Government of the Kingdom of Spain and the Commission were present and made submissions.

V –  Main arguments of the parties

19.      The respondent, the German and Spanish Governments and the Commission point out that the Directive seeks to bring about minimum harmonisation.

20.      The respondent and the Commission submit that the non-implementation of Article 4(2) of Directive 93/13 reflects the intention of the national legislature to widen the protection of consumers, in accordance with Article 8 of the Directive, by extending the substantive assessment of contractual terms to cover also terms relating to the main subject-matter of the contract.

21.      That interpretation, it is submitted, is confirmed by the Commission report of 27 April 2000 on the implementation of Directive 93/13 (COM(2000) 248 final), from which it may be inferred that there are no objections to the failure to implement Article 4(2) of the Directive, particularly as the report considers the possibility of deleting that provision.

22.      The German Government, for its part, concludes from the minimal nature of the desired harmonisation that, so long as contractual terms relating to essential elements of the contract are worded clearly and intelligibly, those terms do not come within the scope of the Directive, with the result that the Member States are free to extend also to them an assessment as to whether provisions are unfair.

23.      From the viewpoint of the German Government, that understanding of the law is confirmed by a systematic, purposive interpretation of Directive 93/13. As the general principle embodied in Article 8 of the Directive applies to all of the previously mentioned provisions, Article 4 of the Directive cannot constitute an exception to that general principle.

24.      The Austrian Government takes the view that any other interpretation of the Directive would amount to a disproportionate intervention in the contract law of the Member States. It would have the consequence that the established concepts of civil law could not be applied to unfair terms if they related to the main subject-matter of the contract. Rather, it contends, it must be left to the Member States to decide whether and, if so, by what means, action should be taken against such provisions.

25.      The Portuguese Government infers, from the existence of Article 8 of Directive 93/13 itself, that the Member States may adopt provisions which are more stringent than those in the Directive and compatible with the EC Treaty in order to ensure a higher level of protection for consumers. In that connection, the Spanish Government points out that the more stringent provisions of the Spanish legal system are in no way designed to partition off the Spanish market by means of legal barriers which could make access more difficult for professionals from other Member States. Rather, those provisions seek to protect consumers in accordance with the purpose of the Directive.

26.      The respondent considers that the so-called rounding-up term does not relate to the main subject-matter of the contract. Although the contractual term in question actually relates to the calculation of the price, it must also be borne in mind that Article 4(2) of Directive 93/13 must be interpreted strictly in so far as it constitutes an exception. Furthermore, the rounding-up term is conditionally formulated in so far as its application is contingent on a future uncertain event, namely the need to adjust the interest rate by 0.25%. The respondent adds that, as the rounding-up term is not an essential element of the contract, the question whether a Member State can diverge from Article 4(2) of Directive 93/13 on the basis of Articles 2 EC, 3(1)(g) EC and 4(1) EC is irrelevant.

27.      In case that line of argument is not accepted, the respondent and the German and Austrian Governments state that, in a social State governed by the rule of law, the free-enterprise economic model and the freedom to set prices in conformity with the aims of Article 2 EC and with the principles of free competition set out in Articles 3(1)(g) EC and 4(1) EC have their limits in the protection of certain general interests, which include the protection of the rights and economic interests of consumers.

28.      The Commission shares the respondent’s doubts as to whether the rounding-up term relates to the main subject-matter of the contract and is therefore uncertain whether the questions referred are relevant to a decision and consequently admissible. In connection with Article 4 EC, the Commission points out that that provision is merely of a programmatic nature and, as the Court stated in Échirolles Distribution, (3) it does not impose on the Member States clear and unconditional obligations which may be relied on by individuals before the national courts.

29.      The appellant differs from all of the other parties in its view of the law. It considers that Article 4(2) of Directive 93/13 is in the nature of binding law and that the Member States may for that reason not depart from it.

30.      In support of its argument it relies, first, on the judgment in Commission v Netherlands, (4) in which the Court found that the Netherlands had failed in its obligations because of the incomplete implementation of Article 4(2) of Directive 93/13 with regard to the requirement of plain intelligible language in the terms in question. The appellant concludes from that judgment that, on the whole, that provision of the Directive is mandatory in nature.

31.      The appellant argues further that Article 4(2) is mandatory in view of the fact that Directive 93/13 seeks to ensure a minimum level of protection for consumers and is consequently worded in an imperative and binding form. Furthermore, the 12th and 19th recitals in the preamble to the Directive show that the Community legislature attempted to lay down the scope of the guaranteed consumer protection by excluding terms relating to the main subject-matter of the contract or the adequacy of the quality/price ratio, which are individually negotiated. In the appellant’s opinion, minimum harmonisation does not rule out the possibility that certain provisions of the Directive are mandatory in nature. The Court found that to be the case in Commission v Spain (5) in relation to the third sentence of Article 5 of Directive 93/13, which provides for an exception to the principle of the interpretation most favourable to the consumer.

32.      The background to Directive 93/13, the appellant continues, also confirms that Article 4(2) is in the nature of mandatory law. The original Commission proposal contained no provision of that kind. Rather, it was added at a later date, which proves that judicial review of the main elements of a contract was regarded as inconsistent with the law of contract, which is based on the principle that the parties are free to arrange their own affairs, and with the principles of the market economy and free competition.

33.      The appellant also relies on the most recent Commission initiatives for the review of the consumer-protection acquis, which confirm how important it is to exclude judicial review of the main provisions of a contract. The appellant refers in particular to the Green Paper on the Review of the Consumer Acquis (6) and the Proposal for a Directive of the European Parliament and of the Council on consumer rights, (7) which were likewise in favour of excluding review, in the same way as Article 4(2), of contractual terms and provided confirmation in connection with full harmonisation.

34.      In case the Court should not accept that argument, the appellant points out that, even if Article 4(2) of Directive 93/13 were not binding, the Member States could not provide for judicial review of the main terms of the contract without infringing the principles of free competition and the free market economy embodied in the EC Treaty. In fact, this would amount to allowing the balance between supply and demand to be subjected to judicial review in order to determine whether it is unfair. In addition, conferring jurisdiction on the courts to assess the main subject-matter of a contract would mean that divergent commercial conditions would prevail within the European internal market.

35.      Finally, the appellant expresses doubts as to whether extending judicial review of the terms of a contract would in fact ensure an increased level of protection for consumers within the terms of Article 8 of Directive 93/13, particularly as the prescribed sanction for unfair terms is nullity and there is a genuine risk that nullity would extend to the entire contract if the term found to be unfair related to the main subject-matter of the contract, without which performance of the contract would be impossible. The system of protection introduced by Directive 93/13 is based on the fundamental premiss that the consumer is in a situation of inequality which requires correction, but without calling into question the validity of the contract.

36.      At the hearing the arguments adduced by the Spanish Government were primarily directed against the appellant’s legal submissions concerning the supposed nature of Article 4(2) of Directive 93/13 as mandatory law and against the classification of the disputed rounding-up term as part of the main subject-matter of the contract. In addition, the Spanish Government changed its proposal for a decision originally submitted in the written procedure and respectfully suggested that the Court should find that any assessment as to whether the main subject-matter of the contract is unfair, which is in principle excluded by Article 4(2) of Directive 93/13, will be consistent with the Directive and with the principles recognised in the EC Treaty.

37.      In the event that that line of argument is not accepted, the Spanish Government suggests instead that the reply to be given to the questions referred should be that a contractual term such as the rounding-up term in issue is not to be classified as a term of the kind which is removed from the scope of Directive 93/13 by Article 4(2).

VI –  Legal assessment

A –    Introductory observations

38.      The purpose of Directive 93/13 is to protect consumers against disadvantages arising from their typically weaker bargaining position vis-à-vis sellers and suppliers, who have in the past used their economic strength to take advantage of consumers by drawing up standard-form contracts and passing risks to consumers on the basis of the freedom of contract. The Directive was designed to counteract that abuse of power. (8)

39.      Directive 93/13 relates to a fundamental problem of private law: the conflict between, on the one hand, the freedom of the parties to arrange their own affairs (9) and, on the other, protection for the weaker contracting party, the consumer. Directive 93/13 substantially restricts the principle of freedom of contract in favour of the consumer by allowing the judicial review of unfair terms. (10) This State intervention in the parties’ freedom to arrange their own affairs is justified by the presumption that, where standard-form contracts are concerned, there is an imbalance in economic power. Contracts are drawn up in advance by undertakings and imposed unilaterally on the consumer, who is given no opportunity to negotiate the contract terms individually. The freedom of the parties to arrange their own affairs is in practice no longer guaranteed as the consumer has no influence over the content of the contract. (11) This justifies State intervention in the parties’ freedom to contract in order to ensure the greatest possible contractual fairness. (12)

40.      However, Directive 93/13 does not go so far as to put an end altogether to the parties’ freedom to arrange their own affairs, as Article 4(2) of the Directive provides that terms relating to ‘the main subject-matter of the contract’ or to ‘the adequacy of the price or remuneration, on the one hand, as against the services or goods [to be supplied] in exchange, on the other’ are not to be subject to an assessment for unfairness. The consumer is not to be protected generally against entering into a disadvantageous transaction. Rather, he is deemed to be adequately protected, with regard to the main subject-matter, through competition.

41.      As mentioned at the outset, (13) the basic question in the present reference is whether Directive 93/13 confers upon the Member States the power, by adopting corresponding national provisions or, as in the case of Spain, by not implementing in national law Article 4(2) of the Directive, to widen the scope of the assessment as to whether contractual terms are unfair, as laid down in Article 4(1) of the Directive, so as to include the types of terms specified in Article 4(2). This will primarily depend on the reply to the question of exactly what function Article 4(2) has within the Directive and its relationship to Article 8 thereof. As the first two questions referred overlap in several respects, they will be considered together for ease of reference.

42.      I shall then examine the third question, which is essentially concerned with the issue of whether a comprehensive assessment of the terms of a contract, as described above, is consistent with the principles of the open-market economy and free competition guaranteed by primary law.

B –    Admissibility of the reference

43.      First of all, however, it is necessary to consider the admissibility of the reference for a preliminary ruling, as both the Commission and the respondent have expressed doubts as to whether the questions are relevant for a decision in the main proceedings.

44.      Both parties are uncertain as to whether the rounding-up term in issue relates at all to the main subject-matter of the contract or to the fairness of the price/quality ratio. They refer to the case-law of Spanish courts and to the opinion of the Commission set out in the Report on the implementation of Directive 93/13 of 5 April 2003, (14) which states that terms laying down the manner of calculation and the procedures for altering the price remain entirely subject to the Directive.

45.      In that connection it must be borne in mind that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. (15)

46.      Consequently, where the questions submitted by the national courts concern the interpretation of a provision of Community law, the Court of Justice is, in principle, bound to give a ruling (16) unless in reality there is an obvious intention to induce the Court to determine a fabricated dispute or to deliver advisory opinions on general or hypothetical questions, or the interpretation of Community law sought bears no relation to the actual facts of the main action or its purpose, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (17)

47.      The referring court takes the view that the provisions of Articles 4 and 8 of Directive 93/13 are expressly relevant for the decision on the appeal before it. (18) Apart from that, there is nothing to support the argument that the questions referred manifestly bear no relation to the actual facts of the main action or its purpose.

48.      Furthermore, in its order for reference, the referring court observes that the uncertainty concerning the interpretation of Directive 93/13 arises from the fact that the Kingdom of Spain, like other Member States, refrained, on the basis of the power conferred by Article 8 of the Directive, from implementing, in its national law, Article 4(2), which provides for exclusion of the substantive assessment of contractual terms. (19) Consequently, the referring court wishes to know where, on a reasonable interpretation of the order for reference, the limits of the assessment required by Community law of contractual terms lie and whether the Member States may, if necessary, widen the scope of that assessment without contravening Community law. (20)

49.      In response to the submissions of the Commission and the respondent concerning the inadmissibility of the reference, it must be stated that the question whether the rounding-up term actually falls within the concept of ‘the main subject-matter of the contract’, within the terms of Article 4(2) of Directive 93/13, is not a question of admissibility, but rather of classification and, therefore, a question of judicial application of Community law to the case in the main proceedings.

50.      It cannot therefore be denied that the questions referred are relevant to the outcome of the main proceedings. It follows that the reference must be treated as being admissible.

C –    Examination of the questions referred

1.      First and second questions

a)      Applicability of Article 8 of Directive 93/13

i)      Existence of a more stringent national provision

51.      The power of derogation conferred by Article 8 of Directive 93/13 enables the Member States to adopt provisions more stringent than those of the Directive. The wording of Article 8 in the different language versions is unclear in so far as it is not immediately apparent in what respect national law can adopt ‘[more] stringent’ provisions. Nevertheless it is clear that they must be such as to ensure ‘a maximum degree of protection’ for the consumer.

52.      That provision corresponds to the 12th recital in the preamble to the Directive, which states that Member States should have the option to afford consumers a ‘higher level of protection’ through national provisions that are ‘more stringent’ than those of the Directive. ‘[More] stringent’ within the meaning of Article 8 of the Directive means provisions that produce a ‘more favourable’ result for the consumer than would follow from direct application of the Directive or of the minimum standard which it prescribes. (21)

53.      Applying that provision to the situation in the main proceedings presupposes, first of all, that widening the assessment of contractual terms as to whether they are unfair, which the Spanish legal system has done by refraining from adopting the restriction of such assessment in Article 4(2), does in fact guarantee a higher level of protection for consumers. In principle it must be presumed that the application of the system of protection introduced by the Directive in such a way that the scope of the assessment of contractual terms is broadened to cover other stipulations such as the main subject-matter of the contract or the adequacy of the price/quality ratio can work for the benefit of consumers, particularly as it prevents them from remaining bound by unfair contractual terms. (22) On that point, it must be observed that the Court has consistently stated that a court’s power to determine of its own motion whether a term is unfair must be regarded as constituting a proper means both of achieving the result sought by Article 6 of the Directive, namely, preventing an individual consumer from being bound by an unfair term, and of contributing to the attainment of the objective of Article 7, since, if the court undertakes such an examination, that may act as a deterrent and contribute to preventing unfair terms being used by traders in contracts concluded with consumers. (23)

54.      A national measure of that kind also offers a higher level of protection than Directive 93/13, which in principle excludes certain types of terms from a substantive assessment. However, it is only one of the different measures lying within the Member States’ margin of discretion which are possible for ensuring greater consumer protection.

55.      Consequently, the national provisions which the Spanish legislature has hitherto brought into force in implementation of Directive 93/13 and which do not provide for the exclusion, corresponding to Article 4(2), of the substantive assessment of contractual terms, must be recognised as being ‘[more] stringent provisions’ within the meaning of Article 8 of the Directive.

ii)    Outline of the scope of Directive 93/13

56.      It is clear from Article 8 of Directive 93/13 that the Member States may adopt more stringent provisions ‘in the area covered by this Directive’, which must be understood as meaning that Article 8 can be called upon only in relation to national measures within the scope of the Directive. In order to determine whether the rounding-up term here at issue falls within the scope of the Directive, it is first necessary to ascertain how the Directive defines its scope ratione personae and ratione materiae in general.

–       Scope ratione personae and ratione materiae

57.      The scope of Directive 93/13 is laid down in Article 1. The scope ratione personae is delimited by Article 1(1), which states that the Directive relates only to terms in contracts between sellers or suppliers and consumers. It follows that contracts between consumers and contracts between sellers or suppliers are excluded from the scope of the Directive. The scope ratione materiae is, in turn, defined in such a way that, according to Article 1(1), in conjunction with Articles 2(a) and 3(1), the assessment provided for by the Directive covers only ‘contractual terms which have not been individually negotiated in consumer contracts’.

58.      In the main proceedings, it is common ground that the loan agreements for the purchase of residential properties which are concluded by the appellant with its clients and which contain the rounding-up term in issue are contracts between sellers or suppliers and consumers. It is also clear from the order for reference that the questions referred presuppose that the term which is the subject of the main proceedings was not negotiated individually with consumers. (24) It follows that those contracts come within both the scope ratione personae and the scope ratione materiae of the Directive.

–       Interpretation of Article 4(2) of Directive 93/13

59.      However, it is questionable whether Article 4(2) of Directive 93/13 is also to be regarded as a rule that lays down the scope ratione materiae. If so, the more stringent national provisions which broaden the scope of the substantive assessment for unfairness to terms relating to the main subject-matter of the contract and the price/quality ratio would no longer be within the scope of the Directive.

60.      To reply to that question, it is necessary to interpret Article 4(2) by using all the methods of interpretation available to the Court, and primarily historical and purposive interpretation.

Article 4(2) of Directive 93/13 as the core area of the parties’ freedom to arrange their own affairs

61.      A study of the antecedents of Directive 93/13 shows that the original Commission proposal (25) did not include a comparable provision. Rather, the addition of Article 4(2) goes back to amendments made by the Council (26) in the course of the legislative process.

62.      Its subsequent inclusion in the draft directive is construed by legal commentators as a value-based decision of the Community legislature in favour of codification for safeguarding the parties’ freedom to arrange their own affairs. (27) In the unanimous view of legal theorists, the intention of the legislature in including Article 4(2) is to restrict judicial review as to whether the terms of consumer contracts are unfair in the interest of the parties’ freedom to arrange their own affairs and in the interest of a functioning market based on competition in respect of price and efficiency. (28)

63.      In the opinion of theorists, the restriction imposed by Article 4(2) on the scope of assessment is based on market-economy considerations. According to the fundamental principles of a liberal economic order, the parties to a contract have decided of their own free will on the thing or service promised and the consideration, for the exchange of which the contract is concluded. That is in conformity with the laws of the market and of competition, which are partly set aside in the case where there are tests or assessments for fairness or equivalence, with the result that any kind of systematic market conduct planned by reference to those laws would be excluded. (29)

64.      It may be inferred from Article 4(2) of Directive 93/13 that the Community legislature intended the main obligations under the contract and the adequacy of the price/quality ratio to be left in principle to agreement by the parties and to market supply at the time. (30) In a certain way, Article 4(2) reflects the tension between the parties’ freedom to arrange their own affairs and the need for statutory intervention in favour of consumer protection. Legal theorists base their interpretation of Article 4(2) on the fact that, in substance, it corresponds to statutory provisions which were in force within the legal systems of certain Member States prior to the adoption of Directive 93/13 and which may have served as models. (31)

65.      Strictly speaking, the aim of preserving a core area in which the parties are free to arrange their own affairs is achieved by limiting the scope of the assessment as to whether the main contractual obligations are unfair, although it must be observed that it is only the assessment of the terms that is limited, particularly as interpretation of Article 4(2) of Directive 93/13, in the light of the 19th recital, proves that the Community legislature evidently proceeded on the assumption that even contractual terms relating to the main subject-matter or the price/quality ratio may sometimes certainly be unfair. (32)

66.      As a basic rule, it may be inferred from Article 4(2) that terms in plain, intelligible language laying down the price or the scope of the main contractual obligations are exempt from assessment as to unfairness under Article 3 of Directive 93/13. In particular, this means that the description of the main subject-matter of the contract and the equivalence ratio stipulated by the parties are in principle excluded from assessment as to unfairness. (33) Whether those conditions are met in relation to the rounding-up term here in issue, to which Spanish law extends that assessment, is a question which I shall now address.

The factual elements of Article 4(2) of Directive 93/13

67.      The first requirement for Article 4(2) of Directive 93/13 to be applicable is that the contractual terms in question should be in ‘plain, intelligible language’. So far as the main proceedings are concerned, it must be observed that, according to the findings of the referring court in the order for reference, the respondent did not complain of a lack of transparency, with the result that the term in issue in the main proceedings is to be treated as if it were plain and intelligible to the consumer. (34) For the purposes of the present preliminary-ruling proceedings, the Court is bound by those factual findings of the referring court. (35)

68.      The further question of whether the rounding-up term in issue is to be exempted from an assessment as to unfairness by the Spanish courts because, for example, it is to be ascribed to the core area of the parties’ freedom to arrange their affairs demarcated by Article 4(2) of Directive 93/13, again involves, as previously mentioned, (36) the actual application of that provision to the case in the main proceedings, in other words, classifying the contractual term in issue with respect to the Community law headings of ‘main subject-matter of the contract’ and ‘adequacy of the price as against the services or goods’, which must therefore be interpreted independently.

69.      It has, however, consistently been held (37) that, in proceedings brought under Article 234 EC, jurisdiction is shared between the Court of Justice and the national courts in such a way that the former is responsible for the interpretation and the latter for the application of Community law. The Court therefore has no jurisdiction to apply the rules of Community law to a specific case or, consequently, to classify provisions of national law with respect to such a rule. It may, however, provide the national court with an interpretation of all relevant provisions of Community law which might be useful in assessing the effects of those provisions. Therefore, the Court cannot directly express an opinion on whether a term can be assessed (38) and certainly not on whether it is compatible (39) with Directive 93/13, but can only decide how the Directive is to be interpreted with reference to a particular term.

70.      Consequently it is for the national court to assess, if necessary, whether the rounding-up term in issue, taking account of the overall structure of the contract and its regulation by national law, comes within the scope of one of the two factual situations referred to by Article 4(2) of Directive 93/13. (40) It may be inferred from the wording of the questions that the referring court obviously contemplates classification under one of those headings and therefore presumes that Article 4(2) is applicable in the main proceedings. In my view, it is unnecessary to decide whether that premiss is actually correct. (41) It is true that the Court has consistently held that it may provide the national court with all those elements by way of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the questions referred. (42) In principle that would include the criteria for differentiating the individual factual elements from each other. However, I do not see any need in the present case to take that step. (43)

Legal nature of Article 4(2) of Directive 93/13

–        Limits of substantive assessment

71.      The question arises as to the consequences in Community law of adopting more stringent national provisions and thus exceeding the assessment limits laid down in Community law. This will depend on the legal nature of the provision in question.

72.      The German and Austrian Governments correctly observe that Article 4(2) leaves a certain margin for interpretation. This may be understood to mean either that the terms covered by that restriction do not come within the ambit of Directive 93/13, or that terms covered by the restriction do come within the ambit of the Directive, but the legal consequence, laid down by Article 6 of the Directive, of the unfair terms in question, namely that they are not binding on the consumer, is not to apply.

73.      Prima facie, neither of those two conclusions is to be preferred. In particular, the legislative background to Directive 93/13 gives no express reasons for the Council’s changes to the original draft version of the Directive and therefore contains no indication in favour of a particular interpretation. However, some assistance is provided by the grammatical and systematic method of interpretation.

74.      The first factor which militates against classifying Article 4(2) as a provision laying down the scope ratione materiae of the Directive is the wording of that provision, which refers to ‘assessment of the unfair nature’, but not to the applicability of the Directive itself, which indicates solely a substantive limitation of the scope of the assessment of contractual terms. Another such factor is that not all terms relating to the main subject-matter of the contract or the price-quality ratio are in principle exempted from assessment, but are exempted only in so far as they are in ‘plain intelligible language’. According to the 19th recital, those terms may not, for the purposes of the Directive, ‘be assessed as unfair’. However, if in a particular case the requirement of transparency is not met, the assessment as to unfairness extends also, without restriction, to those contractual terms. (44) However, I think it is questionable whether the Community legislature could have intended to make the applicability of Directive 93/13 depend on such an uncertain condition, which would ultimately be subject to determination in each case by the national court.

75.      Interpretation of Article 4(2) by reference to its position within the structure of the Directive leads to the same conclusion. The scope of the Directive is laid down in Articles 1 and 2, whereas Article 4 sets out the detailed rules and the scope of the substantive assessment. They provide the necessary criteria and information for carrying out the assessment where the law is being applied. Therefore the two aspects must be strictly distinguished from each other.

76.      It follows that terms which, pursuant to Article 4(2) of Directive 93/13, relate to the main subject-matter of the contract or the price/quality ratio are also covered by the scope of the Directive in principle. Consequently, they fall within ‘the area covered by this Directive’, within the meaning of Article 8. Nevertheless they are exempted from the assessment as to unfairness. (45)

b)      Extent of the power conferred by Article 8 of Directive 93/13

77.      As Article 8 of Directive 93/13 confers power on the Member States to adopt more stringent provisions, it remains to be established whether that legal consequence includes extending the scope of assessment to cover the contractual terms specified in Article 4(2).

i)      Non-mandatory nature of Article 4(2)

78.      In certain circumstances this would be precluded by what the appellant argues to be the mandatory nature of Article 4(2). However, as the appellant itself concedes in its written submissions, this cannot be inferred directly from the Court’s case-law. (46)

79.      The judgment in Commission v Netherlands, (47) which has been invoked by the appellant, likewise offers nothing in support of that argument. In that judgment the Court found that the Netherlands had failed in its obligations under Directive 93/13 by failing to adopt the laws, regulations and administrative provisions necessary for the full transposition into national law of Articles 4(2) and 5 of the Directive. (48) The Court took the view that the relevant civil-law provisions of the Netherlands Civil Code did not have the necessary clarity to give effect to the objectives of the Directive. (49) In doing so, the Court followed the view proposed by Advocate General Tizzano, who in his Opinion complained, inter alia, that, as the civil law of the Netherlands stood at the time, it was still possible for a trader to prevent a consumer from seeking the cancellation of unclear or ambiguous terms which describe the material contractual obligations. (50) The Advocate General pointed out that the exclusion of terms describing material contractual obligations from the Netherlands rules governing standard terms constituted a significant limitation of the scope of the Directive. (51)

80.      In my view, that judgment is irrelevant to the question of whether Article 4(2) of Directive 93/13 is in the nature of mandatory law because it relates exclusively to the implementation, at national level, of the requirement of transparency laid down in Articles 4(2) and 5 of the Directive, and therefore relates to only one aspect of the rules in Article 4(2). The appellant itself acknowledges that the Court refrained from commenting on further aspects of those rules. (52) Consequently, no inferences can be drawn from the judgment in Commission v Netherlands as to the legal nature of Article 4(2). It must also be observed that that case, as Advocate General Tizzano correctly noted, related to a limitation of the scope of Directive 93/13 to the consumer’s disadvantage, contrary to the Directive, whereas the present case is concerned with the widening of the scope of the assessment as to unfairness in the consumer’s favour. This is clearly in conformity with the purpose of the Directive and with the idea of minimum harmonisation, which is to afford consumers the highest possible level of protection. (53) Any limitation of the scope of the Directive, on the other hand, as a result of incorrect implementation implies a failure to come up to the minimum standard of protection laid down by Community law. As the initial situation and also the problems are different in principle, the two cases are not comparable.

81.      The appellant’s attempt to draw conclusions from the judgment in Commission v Spain (54) in support of its argument cannot succeed either. That case concerned the failure of the Kingdom of Spain to comply with its Treaty obligations through its failure to transpose correctly into national law Articles 5 and 6(2) of Directive 93/13. While it is true that the Court described the rule of interpretation embodied in the third sentence of Article 5 of the Directive as a binding legislative provision which confers rights on consumers and assists in determining the result which the Directive seeks to achieve, (55) no conclusions can be drawn from that finding with regard to the legal nature of the provision in Article 4(2) which, so far as that is concerned, regulates a different matter.

82.      The appellant goes on to invoke the legislative history of Directive 93/13, which, in its view, proves that the Community legislature intended to set Community-wide limits on the judicial review of contractual terms as to unfairness. While this is true, as I have already explained in the context of a historical interpretation of Article 4(2), (56) it does not by itself prove that the Community legislature wished by whatever means to restrain the Member States from adopting, on the basis of Article 8, more stringent provisions in order to extend the scope of judicial review. Historical interpretation cannot give a clear reply to the question of the relationship between Article 4(2) and Article 8 of the Directive.

83.      So far as the reference to previous Commission initiatives (57) for the review of the Community acquis in consumer protection is concerned, it must be observed that those are not, from the viewpoint of legal methodology alone, such as to provide guidance for interpreting Directive 93/13 as they are exclusively concerned with a proposal for a different Community measure which ultimately did not enter into force. Apart from the fact that the documents cited do not relate to Directive 93/13, it must be borne in mind that the Commission has only a right of initiative and may therefore withdraw its proposals. Furthermore, those proposals may be subject to numerous alterations by the Council and Parliament in the course of the legislative process, with the result that they are of only limited utility as aids to interpretation. (58) Consequently, they cannot, in the present case, be taken into consideration for either the historical or systematic interpretation of Article 4(2) of Directive 93/13. This applies in particular, as the Commission itself stated in the course of the hearing in response to the Court’s questions on the interpretation of the corresponding succeeding provisions and in connection with the new approach to full harmonisation, (59) to the Commission’s proposal for a directive of the European Parliament and of the Council on consumer rights, which is at present at the stage of consideration by the legislative bodies of the Community.

84.      Article 4(2) of Directive 93/13 cannot therefore be described as a mandatory provision capable of precluding a Member State from relying on Article 8 of the Directive in order to adopt provisions which broaden the scope of the assessment of contractual terms to other terms such as the main subject-matter of the contract or the adequacy of the price/quality ratio.

ii)    Minimum harmonisation

85.      In this connection it must be borne in mind that an unlimited expansion, on the basis of Article 8 of Directive 93/13, of the area subject to assessment could ultimately have the result of undermining the parties’ freedom to arrange their own affairs which is protected by Article 4(2). On the other hand, compliance with that rule may not be regarded as an end in itself. Rather, it must be considered in the context of the objectives of the Directive, taking into account the existing level of harmonisation in the area of consumer protection.

86.      Directive 93/13 seeks to ensure a uniform minimum degree of protection against unfair terms in consumer contracts in the Member States of the Community. According to the 12th recital in its preamble, that objective is to be achieved by way of the partial harmonisation of the national measures in the field of consumer protection. (60) The essential legislative expression of the principle of merely minimum harmonisation underlying Directive 93/13 is the power conferred by Article 8 on the Member States to adopt or retain in their national legal systems provisions which ensure protection going beyond the minimum standard embodied in the Directive. (61) As the 12th recital makes clear, the Member States must be left free to provide better protection for consumers by means of national provisions which are more stringent than those in that directive. This approach to minimum harmonisation allows the Member States a substantial margin of discretion. At the same time, the contrary inference from that provision is that a downward divergence, that is to say, a level of consumer protection remaining below the objectives of the Directive, would not be compatible with the requirements of the Directive.

c)      Conclusion

87.      As Directive 93/13 provides for only minimum harmonisation, it would not in principle preclude the extension of the assessment of contractual terms, if that were desired by the Member States, to other matters such as the main subject-matter of the contract or the adequacy of the price/quality ratio, particularly as that measure is associated with a higher level of consumer protection. (62)

2.      Third question

88.      However, Community law sets limits on the scope of any higher national standard of protection. Irrespective of whether the national provisions relate to situations which come within the scope of the Directive, the Member States must have regard for the general limits of Community law. Their national legislation must not be inconsistent with the EC Treaty, the fundamental freedoms or secondary Community law. (63) That is expressly indicated by Article 8 of Directive 93/13 when it lays down the requirement that the provisions adopted by the Member States must be ‘compatible with the Treaty’. This is the subject of the third question.

a)      Legal assessment in the light of the Community objectives

89.      By its third question, the referring court asks whether a judicial review, allowed in accordance with the rules of the Directive, as to whether terms in consumer contracts are unfair, where such terms are in plain, intelligible language and regulate the main subject-matter of the contract or the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, is compatible with Articles 2 EC, 3(1)(g) EC and 4(1) EC. The question thus seeks a determination by the Court as to whether primary law gives rise to any further barriers to a higher national standard of protection, as provided for in the Spanish legal system. The provisions cited by the referring court relate to the principles of the common market, free competition and the open market economy.

90.      Useful guidance on whether those provisions can be applied as a yardstick to gauge the compatibility of the actions of the Member States with Community law is provided by the judgment in Échirolles Distribution. (64)

91.      As the Court made clear in that judgment, Articles 4 EC, 98 EC and 99 EC, in so far as they refer to economic policy, which must conform with the principle of an open market economy with free competition, define only general objectives, with the result that they must be read in conjunction with the provisions of the Treaty designed to implement those objectives. (65) It follows that they are basically in the nature of an economic governance programme. (66) In the view of the Court, they are not therefore provisions that impose on the Member States clear and unconditional obligations which may be relied on by individuals before the national courts. What is involved is, rather, a general principle the application of which calls for complex economic assessments, which are a matter for the legislature or the national administration. (67)

92.      The last-mentioned is based not least on the fact that, as there is no common economic policy following the model of the common trade policy or agricultural policy in the framework of the economic and monetary union, the Member States continue to be competent and responsible for their general economic policy, although they must adjust this by way of coordination in such a way as to contribute to the attainment of the objectives of the Community within the meaning of Article 2 EC. (68)

93.      In view of the legal uncertainty of those programmes and the continued competence of the Member States in the area of economic policy, it is in principle impossible to assess national implementation measures by use of the yardstick of the abovementioned provisions of primary law as to whether they are compatible with Community law. On the other hand, in accordance with the case-law referred to above, theoretically a legal assessment by reference to the Treaty provisions designed to implement Articles 2 EC, 3(1)(g) EC and 4(1) EC would be possible. While it is true that the question referred cannot be perceived as being an explicit request for the interpretation of those Treaty provisions, the referring court refers generally in its order for reference to the principles of the open market economy and free competition. In that connection it must be borne in mind that the Court is required to provide the national court with all those elements by way of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the questions referred. (69)

b)      Legal assessment by reference to implementation provisions

i)      Competition rules

94.      As the Court recognises, the competition rules of Community law serve to safeguard the principles of Articles 2 EC and 3 EC and to attain the objectives set out therein. (70) The aim laid down by Article 3(1)(g) EC of establishing a system ensuring that competition in the internal market is not distorted is achieved by the application of Articles 81 EC and 82 EC. Those Treaty provisions constitute an application of the general objectives set out in Articles 2 EC and 3 EC (71) and they may therefore be used as criteria for the assessment of national implementation measures.

95.      There can be no question of applying the competition provisions valid for the Member States in the area of State aid under Article 87 EC et seq. to the case in the main proceedings because the reference for a preliminary ruling does not relate to State aid. Likewise, there is no question of applying Articles 81 EC and 82 EC because they are directed at undertakings, not at Member States. Both provisions are essentially concerned only with the conduct of undertakings and not with statutory or regulatory measures of the Member States. Nevertheless, the Court has consistently held that Articles 81 EC and 82 EC, in conjunction with Article 10 EC, require the Member States to refrain from introducing or maintaining in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. (72) According to the case-law, such is the case where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects or deprives its own legislation of its official character by delegating to private traders responsibility for taking economic decisions affecting the economic sphere. (73)

96.      However, there is nothing to indicate that those conditions obtained in the present case. Accordingly, the national provisions in issue do not appear to be in conflict with Article 81 EC, in conjunction with Article 10 EC.

97.      The same applies in relation to the possible application of Article 82 EC, in conjunction with Article 10 EC. First of all, Article 82(a) EC prohibits the abuse of a dominant position through the imposition of unfair purchase or selling prices or other unfair trading conditions. Secondly, the final sentence of Article 3(2) of Council Regulation (EC) No 1/2003 (74) provides that the Member States are not, under that regulation, precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings. Nothing can therefore be inferred from the provisions of competition law which would categorically prohibit legislative intervention in the freedom of individuals to arrange their own affairs on grounds of consumer protection and in order to preserve the economic equilibrium between the goods or services supplied and the consideration.

98.      Consequently, there is nothing to indicate that the national provisions in issue are incompatible with the rules on competition.

ii)    Fundamental freedoms

99.      The system of undistorted competition in the internal market, which is one of the objectives of the Treaty, as set out in Article 3(1)(g) EC, also presupposes, by definition, the greatest possible scope for exercising the fundamental freedoms. (75) Therefore, it is necessary next to consider whether the national provisions here in issue are compatible with the fundamental freedoms. These come into play where, in the case of minimum harmonisation, national legislation restricts free movement within the internal market more than is necessary for minimum protection. (76)

100. In the present case, the application of the primary-law provisions concerning the freedom to provide services falls to be considered. It has consistently been held that the term ‘restriction’ within the meaning of Article 49 EC refers to measures which prohibit, impede or render less attractive the exercise of the freedom to provide services. (77)

101. The question whether an indiscriminately applicable measure, such as an extension of the substantive assessment to cover the main subject-matter of the contract or the price-quality ratio, is covered by that definition must be considered from the viewpoint of a service provider resident in Spain as well as from that of a service provider resident in another Member State in which less stringent provisions apply because, as the Court has consistently held, different situations may give rise to different legal consequences.

102. According to the case-law, a national provision does not constitute a restriction on freedom to provide services within the meaning of the EC Treaty solely by virtue of the fact that other Member States apply less strict rules or rules which are more favourable commercially to providers of similar services established in their territory. (78) Consequently, Spanish service providers cannot claim that the fundamental freedom guaranteed by Article 49 EC is violated merely on the ground that they are in some circumstances subject to stricter laws than are service providers established in other Member States.

103. That, however, as the Commission rightly observes, is the logical consequence of minimum harmonisation. Furthermore, as shown by the 12th recital in the preamble to Directive 93/13, which refers to the degree of harmonisation possible at that time and simultaneously confirms the right of the Member States to adopt stricter national provisions, the Community legislature obviously presumes that different national rules will continue to exist.

104. On the other hand, the definition of ‘restriction’ covers measures adopted by a Member State which, although they are not indiscriminately applicable, affect the market access of undertakings from other Member States and therefore hinder intra-Community trade. (79) According to that case-law, the crucial issue is therefore how the national measures in question affect service providers from other Member States.

105. It is, in principle, possible that a comprehensive judicial assessment of contractual terms which goes beyond the framework set out in Article 4(2) of Directive 93/13 may act as a deterrent to service providers from other Member States where such assessment does not take place. If, as a result, the exercise of the freedom to provide services is made less attractive to them, it might then be presumed that there is a restriction of the freedom to provide services, in line with the definition given above. Such a restriction could, however, be justified on overriding grounds in the general interest, which include consumer protection, (80) provided that it is also consistent with the principle of proportionality.

106. However, if service providers from other Member States enter into contractual agreements with consumers resident in Spain and, on the basis of the relevant conflict-of-laws rules, (81) are subject in certain circumstances to stricter laws than in the State where they are established, that can in no way be regarded as a situation contrary to Community law. As the Court has pointed out on numerous occasions, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate and hence incompatible with Community law. (82)

107. Finally, there is nothing to indicate that the Spanish provisions in question would impose a greater burden on service providers from other Member States than on domestic providers, with the result that they would be discriminatory.

108. Consequently, no violation of the fundamental freedoms can be established.

c)      Conclusion

109. For those reasons, I conclude that there is nothing to indicate that the national provisions at issue in this case are incompatible with the rules on competition or with the fundamental freedoms.

110. Accordingly, it is compatible with Articles 2 EC, 3(1)(g) EC and 4(1) EC to interpret Articles 8 and 4(2) of the Directive as meaning that a Member State may provide for a judicial review of terms in consumer contracts which are in plain, intelligible language and which relate to the main subject-matter of the contract and to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other.

VII –  Conclusion

111. For the reasons given above, I propose that the following replies be given to the questions referred to the Court by the Tribunal Supremo:

1)         Article 4(2), in conjunction with Article 8, of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts does not preclude national legislation which provides for an assessment as to the unfairness of contractual terms which relate to ‘the main subject-matter of the contract’ or to ‘the adequacy of the price and remuneration, on the one hand, as against the services or goods [to be supplied] in exchange, on the other’, even where those terms are in plain, intelligible language.

2)         It is compatible with Articles 2 EC, 3(1)(g) EC and 4(1) EC to interpret Articles 8 and 4(2) of the Directive as meaning that a Member State may provide for a judicial review of terms in consumer contracts which are in plain, intelligible language and which relate to the main subject-matter of the contract and to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other.

1 – Original language: German.

2 – OJ 1993 L 95, p. 29.

3 – Case C-9/99 [2000] ECR I-8207, paragraphs 22 to 26.

4 – Case C-144/99 [2001] ECR I‑3541.

5 – Case C-70/03 [2004] ECR I-7999, paragraph 17.

6 – COM(2006) 744 final.

7 – COM(2008) 614 final.

8 – See the 9th recital in the preamble to the Directive.

9 – In legal theory, freedom of contract is regarded as the most important offshoot of the parties’ freedom to arrange their own affairs and thus as a guarantee of individual rights. For the freedom of individuals to arrange their own affairs in comparative law, see, among German commentators, Larenz, K., Wolf, M., Allgemeiner Teil des bürgerlichen Rechts, 9th ed., Munich 2004, n. 2; in Austrian law, Koziol, H., Welser, R., ‘Grundriss des bürgerlichen Rechts’ Vol. I: Allgemeiner Teil – Sachenrecht – Familienrecht, 11th ed., Vienna 2000, p. 84; in French law, Aubert, J.‑L., Savaux, É., Les obligations. 1. Acte juridique, 12th ed., Paris 2006, p. 72, n. 99, and in Spanish law, Díez-Picazo, L./Gullón, A., Sistema de derecho civil, Vol. I, 10th ed., Madrid 2002, p. 369 et seq. In the opinion of Basedow, J., ‘Die Europäische Union zwischen Marktfreiheit und Überregulierung – Das Schicksal der Vertragsfreiheit’, Sonderdruck aus Bitburger Gesprächen Jahrbuch 2008/I, Munich 2009, p. 103, freedom of contract is already recognised as a general principle of European Community law. In its judgment in Case C‑499/04 Werhof [2006] ECR I‑2397, at paragraph 23, the Court stated that ‘a contract is characterised by the principle of freedom of the parties to arrange their own affairs, according to which, in particular, parties are free to enter into obligations with each other’.

10 – See my Opinion in Case C-40/08 Asturcom [2009] ECR I-0000, point 47.

11 – Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I‑4941, paragraph 25, and Case C-168/05 Mostaza Claro [2006] ECR I‑10421, paragraph 25. In those judgments the Court found, in connection with the interpretation of Articles 6 and 7 of Directive 93/13, that ‘the system of protection introduced by the Directive is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms’.

12 – See, to that effect, Tilmann, I., Die Klauselrichtlinie 93/13/EWG auf der Schnittstelle zwischen Privatrecht und öffentlichem Recht – Eine rechtsvergleichende Untersuchung zum Europarecht, Munich 2003, p. 8. Basedow, J., op. cit. (footnote 9), p. 102, points out that Community legislation on contract law is attributable to the legal policy of taking action against certain shortcomings in economic life by means of legislation. The author concludes from this that the Community concept of freedom to contract is not a matter of individual law, but of economic governance: subject to the condition that competition limits the excessive exercise of economic power, the freedom of the parties to arrange their own affairs and freedom to contract are in the public interest. Where shortcomings in the market preclude the conditions for competition, State intervention in the freedom to contract is legitimate.

13 – See point 2 above.

14 – Cited above in point 21, p. 17.

15 – See, inter alia, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I‑3763, paragraphs 33 and 34; Case C-231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraphs 18 and 19; Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraph 24; Case C-275/06 Promusicae [2008] ECR I‑271, paragraph 36; and Case C-2/06 Kempter [2008] ECR I-411, paragraph 42.

16 – See, inter alia, Case C-379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraph 19; Case C‑380/01 Schneider [2004] ECR I‑1389, paragraph 21; Case C-295/05 Asemfo [2007] ECR I‑2999, paragraph 30; and Joined Cases C-261/07 and C-299/07 VTB-VAB [2009] ECR I-0000, paragraph 32.

17 – See, inter alia, Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18; Joined Cases C‑422/93 to C-424/93 Zabala Erasun and Others [1995] ECR I‑1567, paragraph 29; Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61; Case C‑314/96 Djabali [1998] ECR I‑1149, paragraph 19; PreussenElektra (cited in footnote 16 above), paragraph 39; Schneider (cited in footnote 16 above), paragraph 22; Case C-212/06 Gouvernement de la Communauté française and Gouvernement wallon [2008] ECR I‑1683, paragraph 29; and VTB-VAB (cited in footnote 16 above), paragraph 33.

18 – See p. 11 of the order for reference.

19 – See p. 12 of the order for reference.

20 – See Brandner, H.E., ‘Maßstab und Schranken der Inhaltskontrolle bei Verbraucherverträgen’, Monatsschrift für Deutsches Recht, 4/1997, p. 314; by the same author, ‘Auslegungszuständigkeit des EuGH bei der Inhaltskontrolle von Entgeltklauseln der Banken bei Verbraucherverträgen’, Monatsschrift für Deutsches Recht, 1/1999, p. 8, which observes that the Court has jurisdiction to determine, via interpretation, whether the limits to the assessment of contractual terms laid down by Article 4(2) of Directive 93/13 differ from those of the national law implementing it.

21 – See, to that effect, Pfeiffer, T., in: Das Recht der Europäischen Union (publ. E. Grabitz/M. Hilf), Vol. IV, A5, Art. 8, n. 9, p. 3.

22 – Obviously similar in approach is Pfeiffer, T., op. cit. (footnote 21), n. 13, p. 3, who considers that there is a more stringent provision even where the assessment system is more stringent.

23 – Océano Grupo Editorial and Salvat Editores (cited in footnote 11), paragraph 28, Case C‑473/00 Cofidis [2002] ECR I‑10875, paragraph 32, and Mostaza Claro (cited in footnote 11), paragraph 27.

24 – See p. 9 of the order for reference.

25 – Commission Proposal of 3 September 1990 for a Council Directive on unfair terms in consumer contracts (COM(90) 322 final).

26 – Common Position of the Council of 22 September 1992 on the adoption of the Directive on unfair terms in consumer contracts, Doc. 8406/1/92, OJ 1992 C 283, p. 1, No 2.

27 – See Schmidt-Salzer, J., ‘Leistungsbeschreibungen insbesondere in Versicherungsverträgen und Schranken der Inhaltskontrolle (AGB-Gesetz und EG-Richtlinie über missbräuchliche Klauseln in Verbraucherverträgen)’, in: Festschrift für Hans Erich Brandner zum 70. Geburtstag, Cologne 1996, p. 268.

28 – See, to that effect, Pfeiffer, T., op. cit. (footnote 21) Art. 4, n. 23, p. 7; Schmidt-Salzer, J., op. cit. (footnote 27), p. 265.

29 – See, to that effect, Kohtes, S., Das Recht der vorformulierten Vertragsbedingungen in Spanien, Frankfurt am Main 2004, p. 52.

30 – Likewise Tilmann, I., op.cit. (footnote 12), p. 12, footnote 64.

31 – See, to that effect, Brandner, H.E., ‘Neufassung des EG-Richtlinienvorschlags über missbräuchliche Klauseln in Verbraucherverträgen’, Zeitschrift für Wirtschaftsrecht, 21/92, p. 1591; Brandner, H.E., op. cit. (footnote 20), p. 314; Damm, R., ‘Europäisches Verbrauchervertragsrecht und AGB-Recht’, Juristenzeitung, 4/1994, p. 162. Some writers conjecture that objections may have been raised within the Council by the German Government which contributed to the exclusion under Article 4(2) of Directive 93/13, in relation to consumer contracts also, of any assessment of contractual terms describing the main obligation and price, as was also required by Paragraph 8 of the German Law on general business conditions (AGBG). Consequently, the German legislature did not amend Paragraph 8 AGBG and found that it was unnecessary to adapt its wording to Article 4(2) of Directive 93/13.

32 – In the opinion of Kapnopoulou, E., Das Recht der missbräuchlichen Klauseln in der Europäischen Union, Tübingen 1997, p. 105, the wording of the 19th recital in the preamble to the Directive indicates clearly that contractual terms describing the main subject-matter may certainly be unfair.

33 – Coester, M., in: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 13th ed., Berlin 1998, paragraph 8 AGBG, n. 17, p. 179, points out that Article 4(2) of Directive 93/13 exempts the main subject-matter and the equivalence ratio from assessment as to unfairness in the sector of consumer contracts.

34 – See p. 9 of the order for reference.

35 – In preliminary-ruling proceedings, the national court is the only forum competent to establish the facts of the case before it; see Case C-367/96 Kefalas and Others [1998] ECR I‑2843, paragraph 22.

36 – See point 49 of the present Opinion.

37 – Joined Cases 28/62 to 30/62 Da Costa [1963] ECR 31, and Case C-366/96 Cordelle [1998] ECR I‑583, paragraph 9. See also, to that effect, Craig, P./De Búrca, G., EU Law, 4th ed., Oxford 2008, p. 492, who take the view that, although Article 234 EC confers jurisdiction on the Court to interpret the Treaty, it does not expressly confer the power to apply the Treaty to the main proceedings. The demarcation between interpretation and application marks the distribution of jurisdiction between the Court of Justice and the national courts. The Court accordingly interprets the Treaty and the national courts apply that interpretation to the specific case. According to Schima, B., Kommentar zu EU- und EG-Vertrag (publ. H. Mayer), part 12, Vienna 2003, Art. 234 EC, n. 40, p. 12, it is incumbent upon the national courts to apply a Community rule to the specific legal dispute. However, the author concedes that it is not always easy to separate the application of a rule from its interpretation.

38 – Nassall, W., ‘Die Anwendung der EU-Richtlinie über missbräuchliche Klauseln in Verbraucherverträgen, Juristenzeitung, 14/1995, p. 690, is of the same opinion.

39 – See, to that effect, Schlosser, P., in: J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 13th ed., Berlin 1998, Einleitung zum AGBG, n. 33, p. 18, who observes that references to the Court for a preliminary ruling as to whether certain terms in specific types of contracts are unfair are excluded. A similar view is taken by Whittaker, S., ‘Clauses abusives et garanties des consommateurs: la proposition de directive relative aux droits des consommateurs et la portée de l’harmonisation complete’, Recueil Dalloz, 17/2009, p. 1153, citing the Court’s case-law.

See, on that point, Case C-237/02 Freiburger Kommunalbauten [2004] ECR I‑3403, paragraph 22, and Case C-243/08 Pannon [2009] ECR I‑0000, paragraph 43, in which the Court observed that, in exercising the jurisdiction conferred on it by Article 234 EC to interpret Community law, it may interpret the general criteria used by the Community legislature in order to define the concept of unfair terms. It cannot, however, rule on the application of those general criteria to a particular term, which must be considered in the light of the particular circumstances of the case in question.

In points 27 to 30 of his Opinion in Freiburger Kommunalbauten, Advocate General Geelhoed correctly pointed out that it would be contrary to the Community legislature’s premiss that it is for the national authorities to answer the question as to which contractual terms are to be considered unfair if the Community Courts were none the less to assess those terms. In favour of the jurisdiction of the national courts, the Advocate General cited as arguments the demarcation of powers as between the Community and the Member States, the economical use of legal remedies and the different national legal systems.

40 – Pfeiffer, T., op. cit. (footnote 21), Art. 4, n. 40, p. 11, considers that the classification of an agreement as relating to the main subject-matter of the contract can be judged only in the context of the overall system of the contract and its regulation by national law, for the interpretation of which the national courts once again have jurisdiction. On the other hand, at least the general characteristics of the main subject-matter of the contract are open to clarification by the Court of Justice in the context of preliminary-ruling proceedings.

41 – In my view, not all aspects of a price clause are exempted by Article 4(2) of Directive 93/13 from the unfairness assessment. Consequently, immunity does not extend to the entire regulatory content of a price clause, but only to the adequacy of the proportion between the item or service promised and the consideration. On the other hand, other aspects of price clauses are not exempt from assessment. Thus, in the annex to the Directive the right unilaterally to determine the price at the time of delivery or to increase it in certain circumstances is recognised as unfair and therefore open to assessment (see point 1(l) of the annex). See Pfeiffer, T., op. cit. (footnote 21), Art. 4, n. 31, p. 9; Kapnopoulou, E., op. cit. (footnote 32), p. 109.

42 – Case C-241/89 SARPP [1990] ECR I‑4695, paragraph 8; Case C-315/92 Verband Sozialer Wettbewerb (‘Clinique’) [1994] ECR I‑317, paragraph 7; Case C-87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I‑1301, paragraph 16; Case C-456/02 Trojani [2004] ECR I‑7573, paragraph 38; and Case C-215/03 Oulane [2005] ECR I‑1215, paragraph 47.

43 – An exact demarcation between the individual factual elements seems to me unnecessary in the present case because ultimately it is to be presumed that Article 8 of the Directive is applicable, with the consequence that the Member States may, on the basis of that enabling power, extend the scope of the assessment of the contractual provisions.

44 – The same view is taken by Kapnopoulou, E., op. cit. (footnote 32), p. 103, 113; Baier, K., Europäische Verbraucherverträge und missbräuchliche Klauseln, Hamburg 2004, p. 32; Kohtes, S., op. cit. (footnote 29), p. 52; Nassall, W., op. cit. (footnote 38), p. 690; Damm, R., op. cit. (footnote 31), p. 170. Similarly Advocate General General Tizzano in his Opinion in Commission v Netherlands (cited in footnote 4), point 27.

45 – Academic writers do not give a clear reply to the question whether Article 4(2) also defines the scope ratione materiae of Directive 93/13 or only the scope of the assessment as to unfairness. However, there is a tendency in favour of the second interpretation. Kapnopoulou, E., op. cit. (footnote 32), points out, on the one hand, that the Council’s intention in altering the Commission’s proposal was to remove from the scope of the Directive all terms relating to the main subject-matter of the contract and the price/quality ratio (p. 79). On the other hand, that writer treats Article 4(2) as a restriction of the assessment for unfairness (p. 103). Tilmann, I., op. cit. (footnote 30), p. 12, evidently distinguishes between the provisions which regulate the scope of the Directive and those which lay down the scope of the assessment as to unfairness. Coester, M., op.cit. (footnote 33), n. 16, p. 179, obviously presumes, in connection with Article 4(2), that it provides for exemption from the unfairness assessment, likewise Kohtes, S., op. cit. (footnote 29), p. 52, Schulte-Nölke, H., ‘Verbraucherrecht’, in: Europarecht (publ. Reiner Schulze/Manfred Zuleeg), Baden-Baden 2006, p. 965, and Huet, J., ‘Propos amers sur la directive du 5 avril 1993 relative aux clauses abusives’, La Semaine Juridique, 1/1994, études et chroniques Nr. 309, p. 2, who consider Article 4(2) in connection with the scope of the unfairness assessment.

46 – See the observations of the appellant in the main proceedings, paragraph 91.

47 – Cited in footnote 4.

48 – Ibid. (paragraph 22).

49 – Commission v Netherlands (cited in footnote 4), paragraphs 19 and 20.

50 – Opinion of Advocate General Tizzano, Commission v Netherlands (cited in footnote 4), points 27 and 28.

51 – Ibid. (point 29).

52 – See the observations of the appellant in the main proceedings, paragraph 96.

53 – See point 86 below.

54 – Cited in footnote 5.

55 – Ibid. (paragraph 17).

56 – See points 61 to 63 above.

57 – This refers primarily to the Green Paper on the Review of the Consumer Acquis (COM(2006) 744 final) and the Proposal for a Directive of the European Parliament and of the Council on consumer rights (COM(2008) 614 final). In addition, in its Report of 27 April 2000 on the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (COM(2000) 248 final), at p. 17, the Commission had already considered abolishing the limitations on the assessment of contractual terms in Article 4(2) of Directive 93/13.

57––

58 – See, to that effect, Riesenhuber, K., ‘Die Auslegung’, in: Europäische Methodenlehre, Berlin 2006, p. 257, n. 31. The author writes that historical interpretation in European private law, which involves the historical background and legislative history, plays a central role. If the purpose of interpretation is to ascertain the legislature’s intention, it is first necessary to determine whose intention is to be taken into account. The democratically legitimated legislature consists only of those legislative bodies the assent of which attaches to the legal measure in any specific case. On the other hand, various bodies have only to be heard and even the Commission has only a right of initiative and the option of withdrawing proposals; its proposals may be altered at will in the legislative process. If the Commission’s proposals or intentions are not adopted, a contrary inference at the most may, but need not necessarily, be drawn from this.

59 – The provision succeeding Article 4(2) of Directive 93/13 would be Article 32(3) (General principles) of the proposal for a directive. The new approach to full harmonisation is embodied in Article 4 of the proposal.

60 – Like Council Directive 85/577/EEC to protect the consumer in respect of contracts concluded negotiated away from business premises, Directive 97/7/EC on the protection of consumers in respect of distance contracts, and Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees, Directive 93/13 is based on a minimum harmonisation programme. This programme is expressly set out in the Commission Proposal of 8 October 2008 for a directive of the European Parliament and of the Council on consumer rights, COM(2008) 614 final, which brings the four directives together into a single horizontal legal instrument. The draft Directive is now based on the concept of full harmonisation, with the consequence that the Member States may not retain or introduce any legal provisions which diverge from those of the Directive. The Proposal seeks, by means of the full harmonisation of the essential aspects of the law of consumer contracts which are relevant to the internal market, to contribute to the proper functioning of the internal market for transactions between sellers or suppliers and consumers and to ensure a high, uniform level of protection for consumers.

61 – Pfeiffer, T., op. cit. (footnote 21), Art. 8, n. 1, p. 1, and Kapnopoulou, E., op.cit. (footnote 32), p. 162, take the same view. Long, A., ‘Unfair Contract Terms – New Directive, Implementation and Recent Developments’, Community Law in Practice, Trier 1997, p. 148, points out that, in view of the diverging opinions of the Member States, Directive 93/13 takes the approach of minimum harmonisation and thereby allows the Member States a substantial margin of discretion, which is in turn in conformity the principle of subsidiarity. In its report of 27 April 2000 (cited in footnote 14), p. 5, the Commission refers to the ‘minimal’ character of Directive 93/13, which is given expression in the power conferred by Article 8.

62 – See points 53 and 54 of the present Opinion.

63 – Kapnopoulou, E., op. cit. (footnote 32), p. 163, is of the same opinion.

64 – Cited in footnote 3.

65 – Ibid. (paragraph 24). See also Case C-341/95 Bettati [1998] ECR I‑4355, paragraph 75.

66 – See, to that effect, Bandilla, R., in: Das Recht der Europäischen Union (publ. E. Grabitz/M. Hilf), Vol. I, Art. 4 EC, n. 7, p. 3, who considers that the statement in Article 4(1) EC that economic policy is to be committed to ‘the principle of an open market economy’ is a formulation in the Treaty that may be construed as an economic governance programme.

67 – Échirolles Distribution (cited in footnote 3), paragraph 25.

68 – Likewise Bandilla, R., op. cit. (footnote 66), Vol. II, Art. 98 EC, n. 2, p. 2. When Article 4(1) EC speaks of the adoption of an economic policy ‘as provided in this Treaty and in accordance with the timetable set out therein’, it refers to Title VII, Chapter 1, in Part Three of the Treaty, which contains more detailed provisions on economic policy in Articles 98 EC to 104 EC. As Häde, U., Kommentar zu EUV/EGV (publ. C. Calliess/M. Ruffert), 3rd ed., Munich 2007, Art. 4, n. 4, correctly observes, those articles do not relate to an economic policy which follows the model of the common trade policy or agricultural policy. Instead, what is involved is basically the coordination and supervision of the economic policy of the Member States, which remains in principle independent, particularly with regard to the monetary union which has been put into effect in the meantime by 15 Member States.

69 – SARPP (cited in footnote 42), paragraph 8; Verband Sozaler Wettbewerb (cited in footnote 42), paragraph 7; Consorzio per la tutela del formaggio Gorgonzola (cited in footnote 42), paragraph 16; Trojani (cited in footnote 42), paragraph 38; and Oulane (cited in footnote 42), paragraph 47.

70 – See, in connection with Article 81 EC, Case 6/72 Continental Can v Commission [1973] ECR 215, paragraph 25; Case C-126/97 Eco Swiss [1999] ECR I‑3055, paragraph 36; and Case C‑453/99 Courage andCrehan [2001] ECR I‑6297, paragraph 20.

71 – See Case 85/76 Hoffmann-La Roche [1979] ECR 461; Case 322/81 Michelin [1983] ECR 3461, paragraph 29; and Case C-339/89 Alsthom Atlantique [1991] ECR I‑107, paragraph 10.

72 – Case C-332/89 Marchandise [1991] ECR I‑1027, paragraph 22.

73 – Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16; Marchandise (cited in footnote 72), paragraph 22; and Case C-2/91 Meng [1993] ECR I‑5751, paragraph 14.

74 – Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

75 – In the opinion of Tietje, C., in Das Recht der Europäischen Union (publ. E. Grabitz/M. Hilf), Vol. II, Art. 95, n. 18, p. 6, the concept of the internal market gives rise to a presumption in favour of the free movement of goods, persons and capital.

76 – See, to that effect, Tassikas, A., Dispositives Recht und Rechtswahlfreiheit als Ausnahmebereiche der EG-Grundfreiheiten: ein Beitrag zur Privatautonomie, Vertragsgestaltung und Rechtsfindung im Vertragsverkehr des Binnenmarkts, Frankfurt (Main) 2002, p. 189; Pfeiffer, T., op. cit. (footnote 21), Art. 8, n. 1, 20, 21; Kapnopoulou, E., op. cit. (footnote 32), p. 163.

77 – Case C-442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; Case C‑452/04 Fidium Finanz [2006] ECR I‑9521, paragraph 46; Case C-393/05 Commission v Austria [2007] ECR I‑10195, paragraph 31; Case C-465/05 Commission v Italy [2007] ECR I‑11091, paragraph 17; Case C-389/05 Commission v France [2008] ECR I‑5337, paragraph 52; and Case C-518/06 Commission v Italy [2009] ECR I‑0000, paragraph 63.

78 – See, to that effect, Case C-384/93 Alpine Investments [1995] ECR I‑1141, paragraph 27; Case C-403/03 Schempp [2005] ECR I‑6421, paragraph 45; and Case C‑518/06 Commission v Italy (cited in footnote 77), paragraph 63.

79 – Alpine Investments (cited in footnote 78), paragraphs 35 and 38, and CaixaBank France (cited in footnote 77), paragraph 12.

80 – The protection of consumers may, according to settled case-law, justify restrictions of the freedom to provide services: see, to that effect, Joined Cases C-34/95 to C‑36/95 De Agostini and TV-Shop [1997] ECR I‑3843, paragraph 53; Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraph 67; Joined Cases C‑338/04, C-359/04 and C-360/04 Placanica and Others [2007] ECR I‑1891, paragraph 46; Case C-404/05 Commission v Germany [2007] ECR I‑10239, paragraph 50; and Commission v Austria (cited in footnote 77), paragraph 52.

81 – See Article 5 of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1). For contracts concluded after 17 December 2009, see Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).

82 – See Alpine Investments (cited in footnote 78), paragraph 51, and Case C-262/02 Commission v France [2004] ECR I‑6569, paragraph 37.

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