1.

The reference for a preliminary ruling in the present case has been made in proceedings concerning the payment of remuneration to a lawyer for the provision of legal services to a consumer.

2.

Having doubts as to whether the terms of the disputed contracts concerning remuneration for the provision of legal services can be regarded as constituting unfair terms within the meaning of Directive 93/13/EEC, ( 2 ) the referring court has referred six questions to the Court of Justice for a preliminary ruling concerning the interpretation of the provisions of that directive. At the Court’s request, the present Opinion is limited to an analysis of the fifth and sixth questions referred.

3.

The fifth and sixth questions referred have been raised in the event of the Court answering the first four questions in a manner which entails a finding that the terms of the disputed contracts concerning remuneration for the provision of legal services are unfair. The referring court is of the view that the disputed contracts are not capable of continuing in existence after those terms have been removed. The fifth and sixth questions concern the consequences which, without infringing Directive 93/13, can be drawn from a finding that those terms are unfair in a situation where legal services have already been performed.

4.

According to the wording of Article 6(1) of Directive 93/13:

‘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’.

5.

Article 7(1) of that directive provides:

‘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’.

6.

The provisions of Directive 93/13 have been transposed into the Lithuanian Civil Code. Pursuant to those provisions, if a contractual term is found to be unfair by a court, that term is invalid from the moment the contract is concluded, but the remaining terms of the contract remain binding on the parties so long as the contract is capable of continuing in existence.

7.

Article 50(3) of the Advokatūros įstatymas (Law on the profession of lawyer) of 18 March 2004 (Žin., 2004, No 50-1632) provides:

‘When determining the amount of remuneration due to the lawyer for legal services, account must be taken of the complexity of the case, the lawyer’s qualifications and professional experience, the client’s financial position and other relevant circumstances’.

8.

The Recommendations concerning the maximum amount of the fee for assistance provided by a lawyer (advokatas) or trainee lawyer to be awarded in civil cases were approved by Order No 1R-85 of the Minister for Justice of the Republic of Lithuania of 2 April 2004 and by a resolution of the Lithuanian Bar Association of 26 March 2004 (in the version in force from 20 March 2015). Those recommendations are applicable to the awarding of costs in accordance with the provisions of the [Lithuanian] Code of Civil Procedure.

9.

The defendant in the main proceedings concluded five contracts for the provision of legal services with the applicant in those proceedings. Those contracts concerned the representation of the defendant in the main proceedings: (i) in a civil case concerning the determination that certain assets are subject to joint ownership; (ii) in a civil case concerning the determination of the place of residence of minor children, the right of access and the amount of maintenance; (iii) before the police and the public prosecutor’s office at the initiation of an investigation; (iv) before those authorities during an investigation; and (v) in a divorce case.

10.

Under those contracts, [the applicant in the main proceedings (‘the lawyer’)] undertook to provide consultations orally and/or in writing, to prepare drafts of legal documents and to sign them, to perform a legal review of documents, and to represent [the defendant in the main proceedings (‘the client’ or ‘the consumer’)] before various bodies when carrying out related actions.

11.

The contracts stipulated the amount of the lawyer’s fees as EUR 100 for each hour of consultation with the client or provision of legal services. A part of those fees was to be payable immediately upon presentation by the lawyer of a bill for legal services, taking into account the number of hours spent on consultation or on the provision of legal services.

12.

In addition, under the terms of the individual contracts, the defendant in the main proceedings was to pay certain amounts in advance. On that basis, the defendant in the main proceedings paid the amount of EUR 5600.

13.

The applicant in the main proceedings provided services from April to December 2018 and from January to March 2019.

14.

On 21 and 26 March 2019, the applicant in the main proceedings presented bills for the legal services she had provided to the defendant in the main proceedings.

15.

On 10 April 2019, the applicant in the main proceedings brought an action before the court of first instance, seeking an order requiring the defendant in the main proceedings (i) to pay her the amount of EUR 9900 for the performance of legal services, as well as the amount of EUR 194.30 by way of reimbursement of her expenses, together with interest, and (ii) to pay the costs of the proceedings.

16.

The court of first instance found that the applicant in the main proceedings had performed the services, for which remuneration amounting to EUR 12900 was due. At the same time, that court found that the contractual terms concerning remuneration for the legal services provided were unfair, and reduced the amount of remuneration by half to EUR 6450.

17.

Taking into account the fact that the defendant in the main proceedings had already paid the amount of EUR 5600 to the applicant in the main proceedings, the court of first instance awarded the latter the amount of EUR 850, plus EUR 194.30 for her expenses. It also ruled on interest and on the costs of the proceedings.

18.

The applicant in the main proceedings appealed against the ruling of the court of first instance. That ruling was upheld by the ruling of the court of second instance, against which the applicant in the main proceedings has lodged an appeal on a point of law with the referring court.

19.

In the view of the referring court, two of the terms of the disputed contracts are of fundamental importance in resolving the dispute between the parties: (i) the contractual term concerning the cost (establishing the cost for services actually performed on the basis of an hourly rate); and (ii) the contractual term concerning the arrangements for payment for legal services. If a contract indicated an hourly rate but did not set out in more detail the scope and duration of specific legal services and the expected amount of the final fees, the consumer may have been unable to assess the scope of the services required and the final cost of those services.

20.

Although in some parts of the reference for a preliminary ruling the referring court appears to refer to the contractual term concerning the hourly rate and the term concerning the arrangements for payment for legal services separately, I will not treat them separately in the present Opinion, but will instead refer to them as the contractual term concerning remuneration.

21.

The fifth and sixth questions referred concern the consequences which, without infringing Directive 93/13, can be drawn from a finding that the contractual term in question is unfair. The referring court is of the view that without that term, the disputed contracts are not capable of continuing in existence, which means that they must be declared invalid.

22.

According to the referring court, in the light of the case-law concerning Directive 93/13, this would result in a situation in which the contractual term concerning remuneration would be treated as if it had never been binding on the consumer. This would mean that a national court could refuse to award the lawyer remuneration for the legal services performed.

23.

However, the referring court has doubts, first, as to whether inferring such a consequence from a finding that the terms of the disputed contracts are unfair is compatible with the principle that service contracts are to be for consideration. Secondly, while in the view of the referring court that consequence is an appropriate penalty for the use of unfair terms by a seller or supplier, it may give rise to doubts as to whether such a penalty – where a lawyer receives no remuneration for the services he or she has provided – might lead to the unjust enrichment of a consumer and the creation of a grossly unfair result.

24.

When considering the possibility of awarding a certain amount of remuneration to the lawyer, the referring court must decide whether the case-law of the national courts – according to which, if a court finds that a contractual term concerning price is unfair, it may reduce the cost of the services provided or set the remuneration for those services at cost or at the lowest possible market price – eliminates the deterrent effect and, as such, is incompatible with the long-term objective of Article 7(1) of Directive 93/13.

25.

Under those circumstances, by its order of 23 June 2021, which was received by the Court on 28 June 2021, the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) decided to stay the proceedings and to refer six questions to the Court of Justice for a preliminary ruling. At the Court’s request, the present Opinion concerns the fifth and sixth questions referred, which are worded as follows:

26.

The applicant in the main proceedings, the Lithuanian and German Governments and the European Commission have lodged written observations. No hearing has been held.

27.

By the fifth and sixth questions referred, which it is appropriate to examine together, the referring court, in essence, asks the Court of Justice to clarify whether Article 6(1) and Article 7(1) of Directive 93/13 are to be interpreted as meaning that – in a situation in which a contract for the provision of legal services concluded by a consumer with a seller or supplier is not capable of continuing in existence following the removal of an unfair term concerning remuneration for the provision of legal services, and those services have already been performed – those provisions preclude a national court from dismissing in its entirety the action for payment brought by the seller or supplier against the consumer, instead of awarding that seller or supplier remuneration, in a certain amount, for the performance of legal services.

28.

At this point, it should be clarified that in the main proceedings, the courts of first and second instance reduced the remuneration for the legal services performed by half. ( 3 ) Although the referring court is examining an appeal on a point of law against the ruling of the court of second instance, the fifth and sixth questions referred are not limited to the issue of whether Directive 93/13 precludes such a reduction in remuneration.

29.

It is true that in the grounds of the request for a preliminary ruling, the referring court indicates that it has doubts as to the compatibility with that directive of the case-law of the national courts, which allows – in addition to awarding the cost price or the lowest possible market price of those services – reducing the remuneration for the services provided. ( 4 )

30.

However, the fifth question referred seeks only to clarify whether, in the light of Directive 93/13, a finding that a contractual term is unfair, which entails the annulment of the entire contract, can result in a situation where a seller or supplier does not receive any remuneration at all for the legal services performed.

31.

In the sixth question referred, the referring court lists three possibilities which involve determining the amount of such remuneration on the basis of: (i) the disputed contracts; (ii) the minimum cost of the legal services, determined in accordance with a national legal measure; ( 5 ) or (iii) the circumstances allowing that remuneration to be determined in a ‘reasonable’ amount. In doing so, the referring court does not clarify whether the possibilities it is considering involve upholding the disputed contracts and amending their content or ruling on the amount of remuneration for legal services pursuant to other provisions of Lithuanian law which concern services performed without a legal basis.

32.

The reference for a preliminary ruling does not contain information as to the scope of the review conducted by the referring court when considering the appeal on a point of law. In any case, the fifth and sixth questions referred concern the same issue that was raised before that court. It is related to the consequences of a finding that a contractual term is unfair, which entails the invalidity of the contract. Therefore, I propose to examine those questions together.

33.

Before analysing the questions referred, I will summarise the positions presented by the interested parties in their written observations. I will then discuss the case-law of the Court of Justice regarding the consequences of a finding that a contractual term is unfair and the relevance of that case-law to the present case. On that basis, I will formulate proposed answers to the questions referred.

34.

The applicant in the main proceedings takes the position that the terms of the disputed contracts concerning remuneration for the provision of legal services relate to the ‘main subject matter of the contract’ for the purposes of Article 4(2) of Directive 93/13, and are expressed in plain intelligible language, and as such their fairness cannot be assessed.

35.

For this reason, the applicant in the main proceedings considers the fifth and sixth questions referred only for the sake of completeness. She is of the view that, since legal services have already been performed under the disputed contracts, it is impossible, due to the nature of a contract for the supply of services for consideration, to restore the situation in which the consumer would have been if the term in question had not been included in the disputed contracts. A contrary interpretation, allowing the national court to reclassify the legal relationship between the parties and to transform it into a contract for the supply of services free of charge, would undermine the very essence of the disputed contracts. At the same time, the applicant in the main proceedings appears to argue that reducing the amount of remuneration as the court of first instance did in the main proceedings does not weaken the deterrent effect required by Directive 93/13.

36.

The position of the German Government, which also refers to the sixth question referred only for the sake of completeness, is in the same vein. In that government’s view, an unfair contractual term concerning remuneration for the provision of legal services can be replaced with a supplementary provision concerning remuneration for the provision of such services.

37.

The Lithuanian Government, for its part, is of the view that where legal services have been performed by a lawyer in the performance of a contract whose terms have been found to be unfair, the national court should award the lawyer remuneration taking into account the circumstances of the individual case, the degree of complexity of the case, the lawyer’s competence and experience, the client’s financial situation and other relevant circumstances, with a view to preventing the use of unfair terms.

38.

The Commission takes a different position. It considers that contractual terms concerning remuneration which have been found to be unfair cannot have legal effect. Referring to the case-law of the Court of Justice, according to which a national court may prevent a contract from being annulled by replacing an unfair contractual term with a supplementary provision so as to prevent the consumer from being exposed to ‘particularly unfavourable consequences’, the Commission is of the view that, in the present case, there is no need to resort to the solution developed in that case-law. In the Commission’s view, there is no reason to believe that annulling the disputed contracts could have such ‘consequences’ for the consumer.

39.

It follows from settled case-law that where a contract is capable of continuing in existence following the removal of an unfair contractual term, Article 6(1) of Directive 93/13 precludes a national court from revising the content of that term instead of merely setting aside its application to the assessment of the rights and obligations of the parties to a contract concluded with a consumer. ( 6 ) Nor, as a general rule, can a national court apply, in place of an unfair contractual term, a supplementary provision of national law that governs the rights and obligations of the parties to whom that term applies.

40.

This is confirmed by the judgment in Dexia Nederland, ( 7 ) in which the Court clarified that, after a term providing for the payment of compensation to a seller or supplier in the event of a consumer’s failure to perform his or her contractual obligations has been found to be unfair, Directive 93/13 precludes the seller or supplier from claiming the statutory compensation provided for by a supplementary provision of national law which would have been applicable in the absence of that term.

41.

The obligation for a national court to exclude an unfair contractual term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those amounts.

42.

The case-law of the Court of Justice addressing the issue of claims for restitution is primarily concerned with claims brought by a consumer against a seller or supplier. This can be explained by the wording of Article 6(1) of Directive 93/13, which requires Member States to ensure that unfair terms are ‘not … binding on the consumer’, rather than that they are also not binding on the seller or supplier. The Court emphasises that a finding that a contractual term is unfair should, in principle, have the consequence of restoring the consumer to the legal and factual situation that he or she would have been in if that term had not existed (Article 6(1) of that directive). ( 8 ) The goal is not so much to make the consumer’s and the seller or supplier’s obligations equivalent, but rather to ensure that a finding that a contractual term is unfair is not merely symbolic, preventing a situation where the consumer continues to bear the consequences of the inclusion in the contract of a term that sets the rights and obligations of the parties thereto to his or her detriment. The Court adds, moreover, that the absence of such a restitutory effect would be liable to call into question the dissuasive effect by which Directive 93/13 seeks to ensure that sellers or suppliers do not use unfair contractual terms (Article 6(1) of that directive, read in conjunction with Article 7(1) thereof). ( 9 )

43.

Admittedly, in its judgment in Caixabank and Banco Bilbao Vizcaya Argentaria, ( 10 ) the Court ruled that Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as precluding a national court, in a case where an unfair contractual term requiring a consumer to bear the full costs of creating and cancelling a mortgage is invalid, from refusing to refund to that consumer the amounts paid pursuant to that term, unless any provisions of national law which would be applicable in the absence of that term require the consumer to pay all or part of those costs.

44.

Although that judgment raises some questions of interpretation among legal commentators, ( 11 ) for the sake of consistency with the case-law concerning Directive 93/13 it appears that it should be understood as referring to claims for restitution rather than to the replacement of a contractual term with a supplementary provision or the amending of the content of the contract. It appears that that judgment concerned claims for restitution relating to the reimbursement of expenses ultimately incurred not for the benefit of the seller or supplier who was a party to the contract (even if the funds meant to cover these expenses were to be indirectly transferred to that seller or supplier), but for the benefit of third parties.

45.

Therefore, it is possible to read that judgment as concerning a contractual term under which a consumer has been obliged to bear the full costs of creating and cancelling a mortgage. Since such a term has no effect on that consumer in his or her relationship with the seller or supplier concerned, provisions of national law which state that it is the consumer who is obliged to bear the costs for the benefit of third parties may be relevant when considering claims for restitution. In such a situation, upholding the consumer’s claim for restitution would, in fact, require that the contractual term be replaced with a supplementary provision, which is not permitted under the case-law, or that the content of the disputed term be amended so that it can be found that the seller or supplier is obliged to release the consumer from the debt that the consumer has incurred under those provisions of national law.

46.

Irrespective of how the judgment in Caixabank and Banco Bilbao Vizcaya Argentaria ( 12 ) should be understood, it is not possible to draw overly far-reaching conclusions from it in relation to the present case. That judgment concerned the application of a provision of national law that did not concern the mutual rights and obligations of a seller or supplier and a consumer, but rather the latter’s obligations vis-à-vis third parties. More importantly, that judgment concerned a situation in which the contract was capable of continuing in existence following the removal of the unfair contractual term, while in the circumstances of the present case, the possibility of the disputed contracts continuing in existence without the contractual term concerning remuneration appears doubtful.

47.

Let us now examine the case-law concerning the consequences of a finding that a contractual term is unfair where, under national law, the contract is not capable of continuing in existence without that term. It is apparent from the reference for a preliminary ruling that without the term concerning remuneration, the continued performance of the disputed contracts is impossible, which entails their invalidity. Ultimately, this is a matter for the national court to ascertain. ( 13 )

48.

It follows from the case-law of the Court of Justice to date that in a situation where a national court finds that, under national law, it is not possible to uphold a contract without the unfair terms contained therein, Article 6(1) of Directive 93/13 does not, in principle, preclude the annulment of that contract. ( 14 )

49.

However, the annulment of a contract may be precluded by the consequences that such annulment causes for the consumer.

50.

According to the judgment in Kásler and Káslerné Rábai, ( 15 ) which gave rise to a line of case-law that was subsequently developed and clarified in later preliminary rulings, Article 6(1) of Directive 93/13 does not preclude a national court from replacing an unfair contractual term with a supplementary provision of national law or with a provision that is applicable when the parties to the contract in question agree to it. In the case-law, the possibility of such substitution has been limited to cases in which the consumer could be exposed to ‘particularly unfavourable consequences’ as a result of the contract being annulled. ( 16 )

51.

In place of unfair contractual terms, provisions may be applied that reflect the balance which the national legislature intended to establish between all the rights and obligations of the parties to certain contracts in cases where the parties have not departed from a standard rule provided for by the national legislature in relation to the contracts concerned. By contrast, unfair contractual terms cannot be replaced solely on the basis of provisions of national law of a general nature which have not been subject to a specific assessment by the legislature with a view to establishing a balance between all the rights and obligations of the parties to a contract and which provide that the effects expressed in a legal transaction are to be supplemented, inter alia, by the effects arising from the principle of equity or from established customs. ( 17 )

52.

In one of its orders, the Court of Justice appears to approve of protecting the consumer from ‘particularly unfavourable consequences’ by defining – on the basis of a decision of a [national] court – the circumstances in which a seller or supplier may rely on the rights arising from unfair contractual terms in a manner that differs from the circumstances described in the contract. ( 18 )

53.

For the sake of consistency between that order and the line of case-law discussed here, I believe that the former should be understood as meaning that in any event and in such a case, those circumstances would have to be defined in such a manner as to meet the requirements for replacing unfair contractual terms with supplementary provisions and, above all, that such interference by a [national] court must not undermine the effectiveness of Directive 93/13 and the achievement of its intended objectives.

54.

The considerations in the judgment in Banca B. ( 19 ) also appear to be in a similar vein. In that judgment, the Court clarified that Directive 93/13 does not seek to prescribe uniform solutions as regards the consequences that should follow from a finding that a contractual term is unfair.

55.

First, the [national] court must ensure that equality between the parties to the contract, which would have been undermined if a term that was unfair as regards the consumer had been applied, is restored. Secondly, it is necessary to ensure that the seller or supplier is deterred from including such terms in contracts with consumers. ( 20 )

56.

In principle, the objectives envisioned by Directive 93/13 can be achieved, ‘depending on the case and the national legal framework’, by simply disapplying the unfair term in question with regard to the consumer or, where the contract would not be capable of continuing in existence without the term which has been found to be unfair, by replacing that term with supplementary provisions of national law. However, those are not the only possible consequences of a finding that a contractual term is unfair. ( 21 )

57.

Accordingly, in the judgment in Banca B., the Court clarified that in the absence of supplementary provisions by means of which the annulment of a contract containing unfair contractual terms can be prevented, and where the annulment of the contract would expose a consumer to ‘particularly unfavourable consequences’, interference by a national court is permissible (it may take ‘all the measures necessary to protect the consumer from the particularly unfavourable consequences which could result from the annulment of the [contract] in question’), but that court’s exercise of that power cannot go beyond what is strictly necessary to restore the contractual balance between the parties and thus protect the consumer from the particularly unfavourable consequences which could result from annulment of the contract in question, without prejudice to the objectives pursued by Directive 93/13. ( 22 ) It is not permitted freely to change or restrict the content of unfair contractual terms.

58.

The line of case-law initiated by the judgment in Kásler and Káslerné Rábai was developed in the context of cases in which – due to the monetary nature of the transfers between the parties to the contracts and the possibility of claims for restitution – it appeared possible in principle to restore the state of affairs that would have existed if the contract had not been concluded. ( 23 ) However, such restoration would entail ‘particularly unfavourable consequences’ for the consumer precisely because of claims for restitution and, above all, because of the seller or supplier’s claim for repayment of the amount of principal made available to the consumer becoming immediately due in that connection.

59.

Indeed, the protection afforded to consumers by Directive 93/13 does not go so far as to impose an obligation on the Member States to remove, without exception, all the effects of a legal transaction which included an unfair contractual term, as if all the terms of the contract in question were unfair. ( 24 ) This follows from Article 6(1) of that directive, which ties the penalty provided for therein to an unfair contractual term rather than to the entire contract in which such a term is included.

60.

Giving an answer to the question of what effects the annulment of a contract has on the parties thereto and, in particular, whether and how their situation must be restored to what it would have been if the contract had not been concluded is, at least in principle, a matter for national law.

61.

In principle, it is national law which determines that once an unfair contractual term has been removed in accordance with Article 6(1) of Directive 93/13, the contract is not capable of continuing in existence. It is also national law which determines the consequences that the invalidity of the contract entails, although the consequences of that invalidity must neither undermine the effectiveness of the provisions of that directive nor be contrary to the objectives that the directive seeks to achieve.

62.

It follows from the judgment in Lombard Lízing ( 25 ) that, even if a national court takes the view that it is not possible to restore the parties to the situation they would have been in if that contract had not been concluded, that interference by the national court in the parties’ rights and obligations does not release it from its own obligation to ensure that the consumer is ultimately in the position he or she would have been in if the term found to be unfair had never existed.

63.

Just as it is ultimately for the national court to determine whether declaring invalid contracts containing terms that have been found to be unfair exposes the consumer to ‘particularly unfavourable consequences’, ( 26 ) it is also for that court to assess whether it is possible to restore the situation of the parties to the contract to what it would have been if the contract had not been concluded. ( 27 )

64.

The reference for a preliminary ruling appears to suggest that due to the nature of the disputed contracts for the provision of legal services and given that those services have already been performed, it is, according to the referring court, not possible in the case in the main proceedings to restore the situation that the consumer would have been in if the unfair terms had not been included in those contracts.

65.

If that suggestion is to be understood as meaning that a consumer cannot, as it were, ‘return’ the services performed for him or her, the issue arises as to whether national law permits such a state of affairs and does not provide for any claims, by the party which provided those services, in connection with the annulment of the contract.

66.

If the question thus formulated is answered in the affirmative by national law, then Directive 93/13 does not require that the annulment of the contract be prevented so as to ensure that the seller or supplier who has included unfair contractual terms therein can obtain remuneration, as it were, under the pretext of seeking to ensure equality of the rights and obligations of the parties to the contract or to restore the situation that the consumer would have been in if the unfair contractual term had not existed.

67.

First, the consequences that national law attaches to the invalidity of a contract must neither undermine the effectiveness of the provisions of Directive 93/13 nor be contrary to the objectives that that directive seeks to achieve. ( 28 ) The objective of the directive is to protect consumers. It does not require that sellers or suppliers be granted a certain level of protection in the event that the entire contract is annulled due to their use of unfair contractual terms.

68.

Secondly, as I have indicated in point 42 of the present Opinion, the restoration of the consumer’s legal and factual situation is meant to ensure that a finding that a contractual term is unfair is not merely symbolic, which would be to the detriment of the consumer.

69.

Thirdly, a contrary interpretation of Directive 93/13 would lead to a situation in which contracts containing unfair contractual terms would be systematically ‘supplemented’ by national courts, which would be incompatible with the deterrent effect pursued by that directive. It is precisely for this reason that the line of case-law initiated by the judgment in Kásler and Káslerné Rábai limits the applicability of supplementary provisions in place of unfair contractual terms to situations where the annulment of a contract could result in ‘particularly unfavourable consequences’ for the consumer.

70.

However, the mere fact that a consumer cannot, as it were, ‘return’ the legal services already performed does not necessarily mean that national law does not attach any consequences to the performance of those services under a contract which has proved to be invalid. The reference for a preliminary ruling contains no information on that issue. Nevertheless, if Lithuanian law allows settlements of that kind, ( 29 ) the referring court will have to consider whether the annulment of the contract may result in ‘particularly unfavourable consequences’. Therefore, several observations must be made to allow the referring court to exclude the possibility that it is dealing with such a situation.

71.

The question whether there is a need to protect the interests of the consumer from potential ‘unfavourable consequences’ must be assessed in relation to the circumstances existing or foreseeable at the time when the dispute concerning the unfairness of contractual terms arose. ( 30 ) Matters that should be considered include the consumer’s situation in terms of substantive law in extrajudicial and judicial proceedings, as well as the consumer’s procedural situation in other proceedings. ( 31 )

72.

Removing the effects of a legal transaction that involved a lawyer acting on behalf and for the benefit of his or her client may result in a situation where the performance of those services should be examined in the context of other legal constructs, which – in the specific circumstances and in the light of the national legal framework – may provide for claims related to billing for those services. Legal constructs such as obtaining undue benefit or managing another person’s affairs without authority to do so (negotiorum gestio) may be applicable. The solutions adopted in that regard by provisions of national law may vary. They may consist in the reimbursement of expenses and costs incurred or in the payment of an amount equivalent to the market price for the performance of the services in question.

73.

In order to conclude that the annulment of a loan agreement causes ‘particularly unfavourable consequences’, it is usually sufficient to determine that such annulment results in the seller or supplier’s claim for repayment of the principal made available to the consumer becoming immediately due. By contrast, in the case of the annulment of a contract for the provision of legal services, establishing the nature of the settlements between the parties may require that a series of steps be taken to determine the scope of the services performed and to estimate the value of those services.

74.

It would be difficult to assume that such steps could be taken by the consumer himself or herself. The annulment of a contract for the provision of legal services that have already been performed may place the consumer in a situation of legal uncertainty. This is important because the unfair nature of the term included in the contracts at issue in the main proceedings is said to consist in the fact that the consumer was unable to assess the final cost of the legal services provided. Thus, if national law allows any billing for legal services performed under a contract that has proved to be invalid, removing the contractual term concerning remuneration and annulling the contract puts the consumer in a situation similar to that which Directive 93/13 was intended to remedy.

75.

Accordingly, if in a specific situation and in the light of the national legal framework, any form of billing for legal services performed under a contract that has proved to be invalid is allowed, it should be concluded that the annulment of the contract results in ‘particularly unfavourable consequences’ for the consumer.

76.

In addition to those remarks, it should be noted that legal services may consist in engaging in legal transactions on behalf and for the benefit of the consumer in proceedings before courts and other public authorities. A contract for the provision of legal services may provide the basis for authorising the lawyer to represent the client in those proceedings and to act for his or her benefit. This raises the question of whether the invalidity of that contract may affect the validity and effectiveness of the legal transactions conducted. The answer to that question is provided by national law. If there is doubt as to the validity or effectiveness of such transactions, the national court should find that the annulment of the contract entails ‘particularly unfavourable consequences’ for the consumer.

77.

If, in the light of the considerations outlined above, the referring court finds that the annulment of the contract may result in ‘particularly unfavourable consequences’, it may take measures to protect the consumer from those consequences.

78.

These may involve applying a provision that has been subject to a specific assessment by the legislature with a view to establishing a balance between all the rights and obligations of the parties to a contract, ( 32 ) or interfering with the content of the contract in a way which does not go beyond what is strictly necessary to achieve the objectives pursued by Directive 93/13. ( 33 )

79.

The sixth question referred indicates that, under Lithuanian law, a feasible way of billing for legal services already performed is to set the remuneration for the provision of those services at an amount equal to the minimum cost of the services (minimum rates) as determined by a national legal measure.

80.

I am of the view that Directive 93/13 does not preclude legal services being billed in this way in order to prevent the annulment of a contract that causes ‘particularly unfavourable consequences’ for the consumer.

81.

First, it is a method of billing for legal services that the legislature considers satisfactory from the point of view of balancing all the rights and obligations of the parties in the context of proceedings under the Code of Civil Procedure.

82.

Secondly, this method of billing for the legal services performed (in accordance with the minimum rates set by a national legal measure) will allow the consumer to decide whether to take advantage of the protection afforded to him or her by Directive 93/13 in full knowledge of the economic consequences that this decision entails. This is important as the consumer may also opt out of the protection afforded by that directive. ( 34 ) However, the national court should inform the consumer of the legal consequences which may result from the contract being declared invalid, which may expose the consumer to claims for restitution. ( 35 )

83.

In addition, in the sixth question referred, the referring court appears to assume that a feasible way of billing for services under Lithuanian law would also be to determine a ‘reasonable’ remuneration, taking into account the complexity of the case, the lawyer’s qualifications and experience, the client’s financial situation and other relevant circumstances. Although the referring court does not explicitly state this, the factors to be used in the determination of ‘reasonable’ remuneration essentially correspond to those listed in the provision of Lithuanian law stipulating the guidelines that should be taken into account by the parties to a contract for the provision of legal services when determining remuneration. ( 36 )

84.

While it is feasible under national law to bill for legal services performed by determining remuneration on the basis of minimum rates, and this makes it possible to protect the consumer from the ‘particularly unfavourable consequences’ resulting from the annulment of the contract, Directive 93/13 precludes a national court from using the above method of billing for legal services and imposing an obligation on the consumer to pay a ‘reasonable’ amount of remuneration.

85.

It follows from the case-law ( 37 ) that a national court’s interference with the content of a contract cannot go beyond what is strictly necessary to restore the contractual balance between the parties thereto and thus protect the consumer from the particularly unfavourable consequences which could result from the annulment of the contract in question, without prejudice to the objectives pursued by that directive. Since that balance is already restored by determining remuneration on the basis of minimum rates, ( 38 ) any further interference appears to go beyond what is strictly necessary.

86.

Any consequences that a national court infers from a finding that a contractual term is unfair should ensure that the objectives pursued by Directive 93/13 are achieved. ( 39 ) Even in respect of protecting a consumer from ‘particularly unfavourable consequences’ resulting from the annulment of a contract, the national court should therefore have regard to whether those consequences might deter the consumer from taking advantage of the protection afforded by that directive and result in a situation where a finding that a contractual term is unfair will not have a deterrent effect on sellers or suppliers. It appears that such a situation would occur if the effect of the seller or supplier’s use of an unfair contractual term to define the main subject matter of a contract for the provision of legal services were to be the award of ‘reasonable’ remuneration to that seller or supplier in each case.

87.

In the light of the foregoing, I propose that the Court answer the fifth and sixth questions referred for a preliminary ruling by the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) as follows:

Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as not precluding a national court – in a situation in which a contract for the provision of legal services concluded by a consumer with a seller or supplier is not capable of continuing in existence after the exclusion of an unfair term concerning remuneration for the provision of legal services, and those services have already been performed – from dismissing in its entirety the action brought by that seller or supplier against the consumer for payment of remuneration for the performance of legal services if the national legal framework does not provide for any settlements with respect to the performance of legal services under a contract which has proved to be invalid.

If the annulment of the contract for the provision of legal services would entail particularly unfavourable consequences for the consumer, Article 6(1) and Article 7(1) of Directive 93/13 do not preclude a national court from preventing the annulment of that contract and awarding the seller or supplier remuneration for the legal services already performed in an amount equal to the minimum cost of those services (minimum rates) as determined by a national legal measure.