Pannon GSM Zrt. v Erzsébet Sustikné Győrfi.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Silva de Lapuerta
• ECLI: ECLI:EU:C:2009:350
• Docket Number: C-243/08
• Date: 04 June 2009
• Procedure Type: Reference for a preliminary ruling

Case C-243/08

Pannon GSM Zrt.

v

Erzsébet Sustikné Győrfi

(Reference for a preliminary ruling from the Budaörsi Városi Bíróság)

(Directive 93/13/EEC – Unfair terms in consumer contracts – Legal effects of an unfair term – Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction – Criteria for assessment)

Summary of the Judgment

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

(Council Directive 93/13, Art. 6)

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

(Council Directive 93/13)

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

(Council Directive 93/13, Art. 3)

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

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

(see paras 23, 28, operative part 1)

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

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

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

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

(see para. 44, operative part 3)

JUDGMENT OF THE COURT (Fourth Chamber)

4 June 2009 (*)

(Directive 93/13/EEC – Unfair terms in consumer contracts – Legal effects of an unfair term – Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction – Criteria for assessment)

In Case C‑243/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Budaörsi Városi Bíróság (Hungary), made by decision of 22 May 2008, received at the Court on 2 June 2008, in the proceedings

Pannon GSM Zrt.

v

Erzsébet Sustikné Győrfi,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, T. von Danwitz, R. Silva de Lapuerta (Rapporteur), E. Juhász and J. Malenovský, Judges

Advocate General: V. Trstenjak,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 2 April 2009,

after considering the observations submitted on behalf of:

– Pannon GSM Zrt., by J. Vitári, C. Petia and M.B. Bíró, ügyvédek,

– the Hungarian Government, by J. Fazekas, R. Somssich, K. Borvölgyi and M. Fehér, acting as Agents,

– the Czech Government, by M. Smolek, acting as Agent,

– the Spanish Government, by J. López-Medel Bascones, acting as Agent,

– the French Government, by B. Cabouat and R. Loosli-Surrans, acting as Agents,

– the Austrian Government, by C. Pesendorfer and A. Hable, acting as Agents,

– the United Kingdom Government, by S. Ossowski, acting as Agent, and by T. de la Mare, Barrister,

– the Commission of the European Communities, by W. Wils and B. Simon, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29; ‘the Directive’).

2 The reference has been made in the course of proceedings between Pannon GSM Zrt. (‘Pannon’) and Mrs Sustikné Győrfi relating to the performance of a telephone subscription contract concluded between those parties.

Legal context

Community legislation

3 According to Article 1(1) of the Directive, its purpose is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.

4 Article 3 of the Directive 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.

…

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

5 Subparagraph (q) of paragraph 1 of that annex refers to terms which have the object or effect of:

‘excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy …’

6 Article 4(1) of the Directive provides:

...