1.

A judicial decision finding a term contained in a consumer contract to be unfair may obviously have binding force as a legal precedent. However, may the Member States confer on that decision an erga omnes effect such as to make it binding on sellers or suppliers that were not parties to those proceedings? That is the question which has been put to the Court in this case.

2.

This request for a preliminary ruling has been made in the course of proceedings brought by an undertaking against the Polish competition and consumer protection authorities in connection with a fine imposed on that undertaking on the ground that, in its contracts with consumers, it uses terms in its standard conditions of business which are regarded as being equivalent to terms which have already been declared unfair and entered as such in a public register, in circumstances where that undertaking was not a party to the proceedings culminating in the finding that the terms entered in the register were unfair.

3.

Principally, the referring court wishes to ascertain from the Court, in essence, whether Article 6(1) and Article 7 of Council Directive 93/13/EEC, ( 2 ) in conjunction with Articles 1 and 2 of Directive 2009/22/EC, ( 3 ) preclude legislation such as that at issue in the case pending before it.

4.

Against that background, the Court is asked, for the first time, to determine the limits of the procedural autonomy enjoyed by the Member States under Directive 93/13 and the appropriate balance between the effective protection of consumers from unfair terms, on the one hand, and the right to a hearing enjoyed by a seller or supplier under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), on the other.

5.

Article 3 of Directive 93/13 provides:

‘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.

…

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.

As regards the assessment of whether a contractual term is unfair, Article 4(1) of that directive provides:

‘1.   Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.’

7.

Article 6(1) of that directive provides:

‘1.   Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

8.

Article 7 of Directive 93/13 provides:

‘1.   Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

2.   The means referred to in paragraph 1 shall include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate and effective means to prevent the continued use of such terms.

3.   With due regard for national laws, the legal remedies referred to in paragraph 2 may be directed separately or jointly against a number of sellers or suppliers from the same economic sector or their associations which use or recommend the use of the same general contractual terms or similar terms.’

9.

Article 8 of Directive 93/13 provides that Member States may adopt or retain provisions which are more stringent than those contained in that directive, in so far as they are compatible with the Treaty.

10.

Article 8(a)(1) of Directive 93/13 reads as follows: ( 4 )

‘1.   Where a Member State adopts provisions in accordance with Article 8, it shall inform the Commission thereof, as well as of any subsequent changes, in particular where those provisions:

…

11.

In the version of Directive 2009/22 in force at the time of the facts in the main proceedings, Article 1, entitled ‘Scope’, provides:

‘1.   The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to actions for an injunction referred to in Article 2 aimed at the protection of the collective interests of consumers included in the Directives listed in Annex I, with a view to ensuring the smooth functioning of the internal market.

2.   For the purposes of this Directive, an infringement means any act contrary to the Directives listed in Annex I as transposed into the internal legal order of the Member States which harms the collective interests referred to in paragraph 1.’

12.

Directive 93/13 is mentioned in point 5 of Annex 1 to Directive 2009/22, entitled ‘List of Directives referred to in Article 1’.

13.

Article 2(1) of Directive 2009/22, entitled ‘Actions for an injunction’, provides:

‘1.   Member States shall designate the courts or administrative authorities competent to rule on proceedings commenced by qualified entities within the meaning of Article 3 seeking:

14.

Article 24(1) and (2)(1) of the Ustawa o ochronie konkurencji i konsumentów (Law on competition and consumer protection) of 16 February 2007 (Dz. U. No 50, item 331), in the version applicable to the case in the main proceedings, provides: ( 5 )

‘1.   Practices harming the collective interests of consumers shall be prohibited.

2.   A practice harmful to the collective interests of consumers shall mean any unlawful conduct of a seller or supplier detrimental to such interests, in particular:

15.

Article 26(1) of the Law on competition and consumer protection provides:

‘1.   Where the [President of the Office of Competition and Consumer Protection] finds that there has been an infringement of the prohibition referred to in Article 24, he shall issue a decision declaring that the practice in question is harmful to the collective interests of consumers and ordering its cessation …’

16.

Article 106(1)(4) of the Law on competition and consumer protection provides:

‘1.   The [President of the Office of Competition and Consumer Protection] may impose on the seller or supplier, by means of a decision, a fine of up to 10% of the turnover generated in the financial year preceding the year in which the fine is imposed, where that seller or supplier, even if unintentionally:

…

17.

Articles 47942(1), 47943 and 47945(1) to (3) of the Ustawa — Kodeks postępowania cywilnego (Law governing the Code of Civil Procedure) of 17 November 1964 (Dz. U. 2014, item 101), in the version applicable to the case in the main proceedings (‘the Code of Civil Procedure’) provide: ( 6 )

‘Article 47942

1.   If the application is granted, the court shall, in the operative part of its judgment, reproduce the content of the terms contained in the standard conditions of business which have been declared unlawful and shall prohibit the use of those terms.

Article 47943

The final judgment shall produce its effects in relation to third parties once the term contained in the standard conditions of business which has been declared unlawful has been entered in the register referred to in Article 47945(2).

Article 47945

1.   The court shall forward to the [President of the Office of Competition and Consumer Protection] a copy of the final judgment granting the application.

2.   The [President of the Office of Competition and Consumer Protection] shall maintain, on the basis of the judgments referred to in (1), the register of terms contained in general conditions of business which have been declared unlawful.

3.   The register referred to in paragraph (2) shall be public.’

18.

By decision of 22 November 2011, the President of the Urząd Ochrony Konkurencji i Konsumentów (Office of Competition and Consumer Protection, Poland, ‘the UOKiK’) imposed a fine of PLN 21127 (Polish zlotys) (approximately EUR 4940) on the company HK Zakład Usługowo Handlowy ‘Partner’ Sp. z o.o. (‘HK Partner’), which is engaged in the business, inter alia, of providing tourism services. That decision was adopted under Article 24(1) and Article 24(2)(1) as well as Article 106(1)(4) of the Law on competition and consumer protection, on the ground that, in connection with the sale of travel arrangements, HK Partner had used terms in its standard conditions of business which were regarded as being equivalent to terms previously declared unlawful and then entered in the public register of unfair terms referred to in Article 47945(2) of the Code of Civil Procedure (‘the register of unfair terms’). ( 7 )

19.

HK Partner brought an action against the decision of the President of the UOKiK of 22 November 2011 before the Sąd Okręgowy w Warszawie — Sąd Ochrony Konkurencji i Konsumentów (Regional Court, Warsaw — Competition and Consumer Protection Court, ‘the SOKiK’) seeking to have that decision annulled and, in the alternative, to have the financial penalty reduced. In the course of the proceedings before the SOKiK, HK Partner underwent a demerger as a result of which the applicant, the company Biuro podróży ‘Partner’ Sp. z o.o. (‘Biuro podróży Partner’), took over all of the rights and obligations attaching to HK Partner in connection with its tourism business. By judgment of 19 November 2013, the SOKiK dismissed the action, having concurred with the assessment of the President of the UOKiK to the effect that the terms used by HK Partner were equivalent to the terms contained in the register of unfair terms.

20.

Biuro podróży Partner lodged with the Sąd Apelacyjny w Warszawie VI Wydział Cywilny (Court of Appeal, Warsaw, Civil Division, Poland, ‘Warsaw Court of Appeal’) an appeal seeking to have the decision of the President of the UOKiK of 22 November 2011 annulled or, in the alternative, to have the judgment of the SOKiK of 19 November 2013 set aside and the case referred back to that court for reconsideration.

21.

Habouring doubts as to the interpretation of EU law, the Sąd Apelacyjny w Warszawie VI Wydzial Cywilny (Warsaw Court of Appeal, Civil Division) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

22.

Taking into account the Court’s clear case-law relating to the interpretation of the third paragraph of Article 267 TFEU, ( 8 ) the second question referred for a preliminary ruling does not raise any new points of law. Consequently, submissions need to be made only in respect of the first question referred, which is alone new.

23.

Written observations have been lodged by the Polish Government and the European Commission. The Polish Government and the Commission took part in the hearing, which was held on 9 March 2016.

24.

It is appropriate to begin by giving some account of the Polish system for protecting consumers against unfair terms, under which unfair terms are subject to three forms of review, namely individual review, in abstracto review and administrative review. ( 9 )

25.

An individual review is carried out in the course of disputes, heard by the ordinary courts, between consumers and sellers or suppliers in connection with the unfairness of terms in specific contracts. The judicial decision relating to an individual review is binding only on the parties to the proceedings.

26.

An in abstracto review, on the other hand, is carried out by a specialist court, namely the SOKiK, and is subject to a specific procedure regulated, inter alia, by Article 47942(1), Article 47943 and Article 47945(1) to (3) of the Code of Civil Procedure. ( 10 ) The purpose of an in abstracto review, which relates only to terms contained in standard conditions of business, is to eliminate unfair terms. The SOKiK’s assessment is based on the wording of the contested term and thus does not take into account the way in which that term is used in particular contracts. ( 11 ) Cases may be brought before the SOKiK, inter alia, by any consumer, whether or not bound by a contract, by non-governmental organisations working to safeguard the interests of consumers and by the President of the UOKiK. ( 12 )

27.

When ruling on the unfairness of a term contained in standard conditions of business in the course of an in abstracto review, the SOKiK reproduces the wording of the contested term in the operative part of the judgment, in accordance with Article 47942(1) of the Code of Civil Procedure, and prohibits its use. The final judgment granting the application is then published and the term declared unfair is entered in the register of unfair terms held by the President of the UOKiK. According to the Polish Government, once a clause has been entered in the register, it cannot be corrected or removed from the register.

28.

The Polish Government states that administrative verifications are closely linked to in abstracto verifications, since they implement the judgments of the SOKiK. Thus, in an administrative verification, the President of the UOKiK determines whether the contested term is identical or equivalent to a contractual term on the register of unfair terms, having regard, in particular, to the content of the contested term and its effects on the consumer. In order to be equivalent, the two terms under comparison need not be identical from the point of view of their content. It is sufficient for the President of the UOKiK to find that the contested term applies to the same situation as that covered by the term on the register. The seller or supplier whose terms are the subject of an administrative verification does not generally have the opportunity to challenge the unfairness of the contested term in the particular circumstances at issue but only its equivalence to terms already on the register.

29.

Where the President of the UOKiK finds that there has been an infringement of the prohibition laid down in Article 24(2)(1) of the Law on competition and consumer protection, ( 13 ) he issues a decision ordering the cessation of the practice harmful to the collective interests of consumers and, where appropriate, imposing a fine on the seller or supplier in accordance with Article 106(1)(4) of that Law.

30.

The decisions of the President of the UOKiK are subject to judicial review by the SOKiK as court of first instance and by the Sąd Apelacyjny w Warszawie VI Wydział Cywilny (Warsaw Court of Appeal, Civil Division) as court of second instance. ( 14 ) It is clear from the order for reference that the purpose of the judicial review is to examine not the unfairness of the contested term but only its equivalence to other terms included in the register of unfair terms.

31.

It is clear from the order for reference that the interpretation of Article 24(2)(1) of the Law on competition and consumer protection and Article 47943 of the Code of Civil Procedure ( 15 ) is the subject of doubts which have given rise to different points of view in both case-law and legal literature. According to the referring court, there are two conflicting propositions on this issue.

32.

According to the first proposition, supported by the President of the UOKiK in the case in the main proceedings, and based on a literal reading of Article 47943 of the Code of Civil Procedure, decisions given by the SOKiK in the course of an in abstracto review have an erga omnes effect in relation to all sellers or suppliers once they are entered in the register of unfair terms ( 16 ) (‘the first interpretative proposition’).

33.

According to the second proposition, as described by the referring court and the Polish Government, a decision by the SOKiK finding a term contained in standard conditions of business to be unlawful applies only to the specific term forming the subject of the proceedings and is binding only on the parties to the dispute.

34.

The referring court considers that a proper interpretation of the provisions of national law at issue calls for account to be taken of the requirements of EU law and thus warrants the request for a preliminary ruling. More specifically, that court asks whether Article 6(1) and Article 7 of Directive 93/13 and Articles 1 and 2 of Directive 2009/22 preclude the applicable Polish legislation as interpreted according to the first interpretative proposition and, in particular, whether such an interpretation would be consistent with the seller’s or supplier’s fundamental right to a hearing.

35.

While, in proceedings brought on the basis of Article 267 TFEU, the Court has no jurisdiction to rule on the interpretation of provisions of national law, including the choice between two modes of interpretation, or on the compatibility of national rules with EU law, this being a matter exclusively for the referring court, it does have jurisdiction, when giving a preliminary ruling, to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to rule on the compatibility of national rules with EU law. ( 17 )

36.

I would recall, in that regard, that it falls to the referring court to do whatever lies within its jurisdiction to interpret the national rules applicable in the main proceedings, to the fullest extent possible, in the light of the wording and the purpose of EU law, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that Directive 93/13 is fully effective and achieving an outcome consistent with the objective pursued by it. ( 18 )

37.

Notwithstanding the wording of the first question referred for a preliminary ruling, I take the view that that question must be examined in the light of Directive 93/13 in its entirety, taking into account also the requirements arising from the Charter, in particular Article 47 thereof, relating to the right to a hearing. I would recall here that, in order to provide a satisfactory answer to a national court which has referred a question to it, the Court may deem it necessary to consider rules of EU law to which the national court has not referred in the text of its question. ( 19 )

38.

To my mind, the question referred for a preliminary ruling must therefore be understood as seeking to ascertain whether Directive 93/13, when read in conjunction with Articles 1 and 2 of Directive 2009/22 and Article 47 of the Charter, must be interpreted as meaning that it precludes national legislation providing for the imposition of a fine on a seller or supplier which, in its contracts with consumers, uses terms contained in its standard conditions of business which are regarded as equivalent to terms already declared unfair and entered as such in a public register, in circumstances where that seller or supplier was not a party to the proceedings culminating in the finding that the terms on the register are unfair.

39.

The system of protection established by Directive 93/13 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. ( 20 ) In that regard, Articles 6 and 7 of that directive require the Member States to ensure ‘adequate and effective means’ to prevent the continued use of unfair terms in consumer contracts ( 21 ) and to lay down that unfair clauses are not binding on the consumer, and aim, in the Court’s words ‘to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them’. ( 22 )

40.

There is little doubt that a scheme such as that provided for in the Polish legislation is appropriate for the purposes of ensuring a high level of consumer protection. ( 23 ) By conferring an erga omnes effect on decisions given in the course of an in abstracto review and allowing substantial fines ( 24 ) to be imposed on sellers or suppliers, such a scheme effectively and swiftly counters the use of terms which have been declared unfair as well as equivalent terms having a similar negative effect on the consumer. Furthermore, such a scheme ensures that the legislation is not circumvented by means of slight editorial and stylistic modifications to terms which have already been banned. ( 25 )

41.

As the Polish Government notes, Directive 93/13 does not prescribe a particular model which the Member States must use in order to prevent the continued use of unfair terms. Nor does it specify the legal effect attaching to a finding that a contractual term is unfair, since the directive is founded on the principle of the procedural autonomy of the Member States. Article 6(1) of that directive thus refers to the provisions under the national laws of the Member States, ( 26 ) and Article 8 of that directive even authorises the adoption or retention of national provisions which are more stringent than those provided for in that directive. ( 27 ) It does not follow from the foregoing, however, that the Member States have absolute freedom to adopt more stringent provisions applicable to unfair terms. As is clear from Article 8 of Directive 93/13, those provisions must be compatible with the treaties.

42.

Contrary to the Polish Government’s contention, I take the view that a scheme such as that advocated by those in favour of the first interpretative proposition does not comply with the requirements arising from Directive 93/13 when read in the light of the Charter. This conclusion is based on the submissions set out below in response to the arguments raised by the Polish Government and the Commission.

43.

It is clear from Article 4(1) of Directive 93/13 that the unfairness of a term used in consumer contracts must be assessed ‘taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent’. ( 28 )

44.

Thus, for the purposes of assessing unfairness, a contractual term cannot be isolated from its context. It follows that such an assessment is not absolute but relative, inasmuch as it is dependent on the particular facts attending the conclusion of the contract, ( 29 ) including the cumulative effect of all of the terms of the contract. ( 30 )

45.

It is also clear from its settled case-law that the Court should not rule on the application of the general criteria used by the EU legislature in order to define the concept of unfair terms to a particular term, which must be considered in the light of the particular circumstances of the case in question, this being an assessment which falls to the national court. ( 31 )

46.

A contractual term may thus be regarded as unfair in some circumstances but not in others, ( 32 ) depending, in particular, on the price paid by the consumer. ( 33 ) The assessment of unfairness might also change over time as a result of an amendment of the law applicable to the contract. ( 34 )

47.

There are of course some contractual terms which are manifestly unfair, in which case the assessment incumbent upon the national court under Article 4(1) of Directive 93/13 is easier, although no less specific. Such terms will also frequently be contrary to the mandatory rules of national consumer or contract law.

48.

A national judicial decision finding that a contractual term is generically unfair or does not comply with mandatory rules would of course, inasmuch as it constitutes a precedent, have significant indirect effects on other sellers or suppliers using identical or similar terms in their contracts with consumers, since such sellers or suppliers would of course have to expect a similar assessment if their contracts were the subject of a judicial review. The fact remains, however, that the assessment of unfairness varies from one contract to another depending on the particular circumstances and the law applicable to the contract and the term in question.

49.

Consequently, a scheme providing as a general rule that a finding as to the unfairness of terms contained in standard conditions of business which is reached in the course of in abstracto judicial proceedings must be definitive, is, to my mind, difficult if not impossible to reconcile with Article 4(1) of Directive 93/13, which requires that the assessment of unfairness be specific and made on the basis of the particular circumstances involved.

50.

The annex to Directive 93/13 contains a list which Article 3(3) of the directive describes as an ‘indicative and non-exhaustive list of the terms which may be regarded as unfair’. ( 35 )

51.

The Commission had initially proposed that the legislature draw up a genuine ‘blacklist’ of terms regarded as being unfair in all circumstances, then a ‘grey’ list of terms presumed to be unfair. However, those approaches were not supported by the Council of the European Union, which opted for a purely indicative list. ( 36 ) The Court has confirmed that ‘a term appearing in the list need not necessarily be considered unfair and, conversely, a term that does not appear in the list may nonetheless be regarded as unfair’. ( 37 )

52.

To my mind, the legislature’s choice as to the nature of the list clearly demonstrates just how difficult it is to identify terms which will be unfair in all circumstances, even when it comes to terms such as those contained in that list which are considered to be particularly problematic from the point of view of the imbalance they create to the detriment of the consumer. ( 38 ) This is also apparent from the flexibility offered by the wording of the list. ( 39 )

53.

Where, pursuant to Article 8 of Directive 93/13, a Member State ‘adopts provisions … [containing] lists of contractual terms which shall be considered as unfair’, it must, pursuant to Article 8a(1) of that directive, inform the Commission thereof. ( 40 ) Unlike the indicative list in the annex to that directive, the national lists adopted under Article 8 may be binding, whether they are ‘black’ or ‘grey’. ( 41 )

54.

To my mind, however, the expression ‘adopts provisions’, contained in Article 8a(1) of Directive 93/13, implies that such a national list must be established by way of legislation, that is to say by statute or by administrative rules adopted under statute. The mechanism introduced by Article 8 and Article 8a(1) of that directive thus requires the legislature to give a precise account of the terms which are prohibited or presumed to be unfair, striking a careful balance between the different and sometimes competing interests involved, and to notify those terms to the Commission. It is worth noting that the legislative process, which may involve external stakeholders, lends itself by definition to the adoption of general and abstract rules.

55.

In practice, a scheme such as that advocated by the supporters of the first interpretative proposition empowers the national courts, rather than the legislature, to draw up, on a case-by-case basis, a ‘black list’ that can be used to penalise the use of identical or equivalent terms. In that scenario, the terms declared to be unfair are added to the register of unfair terms on an ongoing basis, that register being effectively drawn up by sellers and suppliers. It is clear from the foregoing that such a scheme is not comparable to the adoption of national lists as authorised by Article 8 of Directive 93/13.

56.

Furthermore, such a scheme strikes me as being difficult to reconcile with the principle of the legality of criminal offences and penalties, which is enshrined in Article 49 of the Charter and requires that legislation define clearly offences and the penalties which they attract. ( 42 )

57.

In the light of the large and growing number of entries in the register of unfair terms, ( 43 ) that scheme also raises doubts in relation to the principle of legal certainty, which is one of the general principles of EU law, ( 44 ) since sellers and suppliers will inevitably struggle to identify the legal context within which they are operating and to anticipate the consequences this brings with it. Those doubts are particularly serious when it comes to the possibility of penalising the use of terms which are only ‘equivalent’ to terms in the register. ( 45 )

58.

Closely linked to the foregoing considerations relating to the specific assessment of the unfairness of a contractual term is the question of the seller’s or supplier’s right to refute the unfairness of the terms which it uses in its contracts with consumers.

59.

It follows from an a contrario reading of Article (3)(1) of Directive 93/13 that a contractual term is not regarded as unfair if it has been individually negotiated. ( 46 ) In that regard, the third subparagraph of Article 3(2) of that directive provides that the burden of proving that a standard term has been individually negotiated is to be incumbent upon the seller or supplier making a claim to that effect. I infer from this that Directive 93/13 confers on the seller or supplier, at the very least, the right to show that the contested term was individually negotiated and that, for that reason, it is not unfair within the meaning of that directive in that particular case.

60.

In my view, the seller’s or supplier’s right under the third subparagraph of Article 3(2) of Directive 93/13 to furnish arguments and evidence in order to discharge the burden of proof forms part of the more general and more extensive right arising from Article 47 of the Charter, in the light of which the provisions of Directive 93/13 must be read. ( 47 )

61.

Article 47 of the Charter guarantees for everyone, ( 48 ) in circumstances falling within the scope of the Charter, ( 49 ) the right to a hearing, in the course of both administrative and judicial proceedings. ( 50 ) According to the Court, that right includes the opportunity for every person to make known his views effectively before the adoption of any decision liable to affect his interests adversely so as to enable the competent authority effectively to take into account all relevant information. ( 51 ) The foregoing obviously holds good in the case of a decision imposing a financial penalty on a seller or supplier.

62.

In a judicial review such as that contemplated in the legislation at issue, the seller’s or supplier’s right to a hearing would serve two distinct functions. First, it would enable the seller or supplier to prove that the particular circumstances attending the conclusion of the contract in question were different from those already assessed as part of previous proceedings establishing the unfairness of an identical or equivalent term. Secondly, the right to a hearing enables the seller or supplier to rely on pleas in law, whether factual or legal, which, for whatever reason, were not relied on during the previous in abstracto proceedings and to correct errors committed in the course of those proceedings. ( 52 )

63.

I conclude from this that, in the context of Directive 93/13, the seller’s or supplier’s right to a hearing cannot be confined to the question of whether the contested term was individually negotiated but must include all elements relevant to the assessment of the unfairness of that term under Article 4(1) of that directive. ( 53 ) Thus, the seller or supplier should also be able to prove that, in the particular circumstances, the contested term does not create a significant imbalance to the detriment of the consumer, by showing, in particular, that the harmful effect of that term is offset by other terms in the same contract or by the reduced price paid by the consumer. ( 54 )

64.

On the basis of the information submitted by the referring court and the Polish Government, I am of the view that a scheme such as that which follows from the first interpretative proposition does not take sufficient account of the seller’s or supplier’s right to a hearing, since the latter has no opportunity, either in the course of the administrative review or in the course of the judicial review before the SOKiK and the Sąd Apelacyjny w Warszawie VI Wydział Cywilny (Warsaw Court of Appeal, Civil Division), to raise the argument that, in the particular circumstances in question, the contested term is not unfair or to adduce the evidence to prove it. ( 55 ) As the referring court states, the purpose of those procedures is to review not the unfairness of the contested term per se but only its equivalence to terms already in the register of unfair terms.

65.

Although it is not inconceivable, as the Polish Government submits, that, when examining the equivalence between a contested term and one in the register of unfair terms, the national courts will take account of the factors mentioned in Article 4(1) of Directive 93/13, ( 56 ) the fact remains that that assessment is in any event intended only to determine whether the two terms are identical or equivalent ( 57 ) and the seller or supplier is not able to call into question the unfairness of the contested term per se by referring to the particular circumstances in question, including the fact that the term was individually negotiated, or to new arguments that were not put forward in the in abstracto review. Under such a scheme, the right enjoyed by the seller or supplier pursuant to Article 47 of the Charter is thus significantly restricted. ( 58 )

66.

At the same time, the jurisdiction of the court carrying out the judicial review is extremely limited, which in itself raises questions in relation to Article 47 of the Charter, which requires ‘an effective remedy’. ( 59 ) Moreover, such a scheme would also adversely affect the consumer’s right to waive the non-application of an unfair term. ( 60 )

67.

It is true that, in accordance with Article 52(1) of the Charter, the right to a hearing may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued and have due regard for the principle of proportionality. ( 61 ) In that regard, the Polish Government submits, rightly to my mind, that the national legislation seeks to put a swift and effective stop to the use of unlawful terms in the various situations that may arise on the market and to avoid a multiplicity of judicial procedures concerning the equivalence of terms contained in the general conditions of business used by different sellers or suppliers. ( 62 )

68.

Valid as they most certainly are, those considerations cannot in my view justify the particularly serious restriction of the seller’s or supplier’s right to a hearing that arises from Article 47943 of the Code of Civil Procedure and Article 24(2)(1) of the Law on competition and consumer protection, as interpreted in accordance with the first interpretative proposition, taking into account also the not insignificant level of the fines that can be imposed on the seller or supplier under Article 106(1)(4) of that law. ( 63 )

69.

The definitive nature of the entry of terms in the register of unfair terms lends further weight to the conclusion that the national legislation in question, as interpreted in accordance with the first interpretative proposition, is not consistent with the principle of proportionality. ( 64 )

70.

As the Commission states, there would appear to be alternative measures that would secure effective protection against unfair terms for consumers while at the same time guaranteeing the seller’s or supplier’s right to a hearing. Thus, the Member States cannot be prevented from implementing measures which establish a presumption as to the unfairness of certain terms contained in standard conditions of business ( 65 ) the use of which is liable to be penalised unless the seller or supplier can show, in administrative or judicial proceedings, that those terms are not unfair in the particular circumstances involved, by proving, in particular, that they were individually negotiated.

71.

Furthermore, the fact that it does not have an erga omnes effect does not mean that a finding as to the unfairness of a term contained in standard conditions of business would not act as a deterrent, in so far as other sellers or suppliers would tend to stop using similar terms. ( 66 )

72.

As the Commission states, Article 7(2) and (3) of Directive 93/13 authorises collective actions for an injunction which do go beyond the contractual relationship in the sense that they are independent of any individual dispute and may be brought by persons and organisations having a legitimate interest in protecting consumers. ( 67 ) As the expression ‘without prejudice to Article 7’ in Article 4(1) of that directive indicates, the actions referred to in Article 7(2) of that directive are supplementary to individual actions. ( 68 )

73.

Article 7(2) of that directive provides for an in abstracto review, of a deterrent and dissuasive nature, ( 69 ) aimed at determining ‘whether contractual terms drawn up for general use are unfair’, while Article 7(3) of the same directive allows the actions referred to in Article 7(2) thereof to be directed separately or jointly against a number of sellers or suppliers from the same sector or their associations.

74.

It is clear from the Court’s case-law that, in the context of Directive 93/13, individual and collective actions have ‘different purposes and legal effects’. ( 70 ) Furthermore, the twenty-third recital of Directive 93/13 states that collective actions do not entail ‘prior verification of the general conditions obtaining in individual economic sectors’. I infer from this that the ex ante review carried out in a collective action cannot prejudge the ex post review carried out in an individual action involving other parties, ( 71 ) which means, in practice, that the effects of decisions adopted at the conclusion of collective actions cannot be extended to sellers or suppliers that were not parties to those proceedings. ( 72 )

75.

That conclusion is supported by the additional provision contained in Article 7(3) of Directive 93/13. Thus, there would be no sense, in my view, in allowing multi-party proceedings to be brought under that paragraph if the decisions given in the collective actions referred to in Article 7(2) of the same directive were already binding upon all sellers or suppliers. The drafting history of that directive also militates in favour of the interpretation to the effect that decisions adopted in the collective actions for an injunction referred to in Article 7(2) and (3) are binding only on the parties to that particular collective action. ( 73 )

76.

It is true that, in the case of terms contained in standard conditions of business, which are rarely the subject of individual negotiation, the assessments to be carried out by the national courts in a collective action and an individual action respectively will often be similar, if not identical, even though the parties to the actions are not the same. Consequently, the decision given in a collective action would set a strong precedent for the assessment to be carried out in a subsequent individual action relating to an identical or equivalent term and may even create a presumption as to the unfairness of that term. The fact remains, however, that a seller or supplier that was not a party to the collective proceedings should not be deprived of the right, under the third subparagraph of Article 3(2) of Directive 93/13 and Article 47 of the Charter, to refute such a presumption in an individual action.

77.

As the Polish Government and the Commission have highlighted, the Court, in the judgment in Invitel, held that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) and (2) thereof, does not preclude the effect of decisions establishing the unfairness of a term contained in standard conditions of business in the course of an action for an injunction under Article 7 of that directive from being extended ‘to all consumers who concluded with the seller or supplier concerned a contract to which the same [standard conditions of business] apply, including … those consumers who were not party to the injunction proceedings’. ( 74 )

78.

That result is hardly surprising. If anything, it is the corollary of the nature and purpose of collective actions for an injunction. Where a contractual term has been declared invalid and prohibited in an action for an injunction, there is obviously a need to ensure that the seller or supplier concerned does not use the same general conditions of business, including the term declared unfair, in any of its contracts. The actions for an injunction provided for in Article 7(2) and (3) of Directive 93/13 would otherwise be deprived of any useful effect.

79.

In paragraph 40 of the judgment in Invitel, the Court rightly stated that the application of a penalty of invalidity of an unfair term with regard to all consumers who have concluded with the seller or supplier concerned a consumer contract to which the same standard conditions of business apply ‘ensures that those consumers will not be bound by that term’, ( 75 ) the Court thereby referring to Article 6(1) of Directive 93/13, which, in the Court’s words, requires the Member States, ‘to draw all the consequences’ that follow under national law from a finding that a term contained in standard conditions of business is unfair, so as to ensure that the consumer is not bound by that term. ( 76 ).

80.

There is little doubt, in my view, that that case-law is not transposable to the situation in the present case.

81.

When giving the reasons for its conclusion in the judgment in Invitel, ( 77 ) the Court thus expressly referred to points 57 to 61 of the Opinion of the Advocate General, who, for her part, expressed ‘serious doubts’ about an erga omnes effect in relation to sellers or suppliers that were not parties to the proceedings to establish the unfairness of the contested term, which concerns I share wholeheartedly. ( 78 )

82.

Furthermore, the question before the Court in the case which gave rise to that judgment, namely the extension of the penalty of invalidity of an unfair term with regard to consumers who have concluded with the seller or supplier concerned a consumer contract to which the same standard conditions of business apply, was manifestly different from that raised by the referring court in the present case, which concerns the imposition of financial penalties on sellers or suppliers that were not parties to the in abstracto review.

83.

A broad interpretation of the scope of the judgment in Invitel, ( 79 ) to the effect that it covers legislation providing for an erga omnes effect in relation to sellers or suppliers not parties to the proceedings, does not therefore strike me as justifiable and would in any event be inconsistent with the fundamental rights of the seller or supplier. ( 80 )

84.

The interpretation of Directive 93/13 which I advocate is not capable of being called into question in the light of Articles 1 and 2 of Directive 2009/22, to which the national court refers in its first question.

85.

Directive 2009/22, concerning collective actions for injunctions for the protection of consumers’ interests, has as its objective to give full effect to a number of directives, including Directive 93/13, and, in particular, to combat infringements within the European Union. ( 81 )

86.

In that regard, Article 2(1)(a) to (c) of Directive 2009/22 requires the Member States to designate the courts or administrative authorities competent to rule on collective proceedings commenced by qualified entities within the meaning of Article 3 of that directive, seeking an order requiring the cessation of any act contrary to Directive 93/13, the publication of the decision or a corrective statement and an order against the losing defendant for payments into the public purse or to any beneficiary designated in national legislation, in the event of failure to comply with the decision.

87.

As regards the relationship between Directive 2009/22 and Directive 93/13, the former is supplementary to Article 7(2) and (3) of Directive 93/13, which also concerns actions for an injunction. ( 82 )

88.

I can see nothing, either in the wording of Directive 2009/22 or in its drafting history, ( 83 ) to indicate that the Member States are authorised to confer on decisions given in the actions referred to in that directive an erga omnes effect in relation to sellers and suppliers that were not parties to the injunction proceedings. If that were the case, Directive 2009/22 would go beyond the regime established by Directive 93/13, which the former directive is intended to supplement, a presumption which it is impossible to make in the absence of any express wish to that effect on the part of the EU legislature.

89.

A change to EU law such as to allow the Member States to extend the effects of decisions declaring a contractual term to be unfair to ‘similar contracts’ has, however, been considered under the auspices of the Commission. ( 84 ) This simply confirms that such a solution is not possible as EU law currently stands, that is to say in the context of Directives 93/13 and 2009/22.

90.

In the light of the foregoing, I propose that the Court’s answer to the first question referred for a preliminary ruling by the Sąd Apelacyjny w Warszawie VI Wydział Cywilny (Court of Appeal, Warsaw, Civil Division, Poland) should be as follows:

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, in conjunction with Articles (1) and (2) of Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that it precludes national legislation providing for the imposition of a fine on a seller or supplier which, in its contracts with consumers, uses terms contained in standard conditions of business which are regarded as being equivalent to terms which have already been declared unfair and entered as such in a public register, in circumstances where that seller or supplier was not a party to the proceedings culminating in the finding that the terms in the register are unfair.