Ynos kft v János Varga.

• Jurisdiction: European Union
• Celex Number: 62004CC0302
• ECLI: ECLI:EU:C:2005:576
• Date: 22 September 2005
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - inadmisible
• Docket Number: C-302/04

OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 22 September 2005 (1)

Case C-302/04

Ynos Kft.

v

János Varga

(Reference for a preliminary ruling from the Szombathelyi Városi Bíróság (Hungary))

(Article 234 EC – Directive 93/13/EEC – Unfair terms in consumer contracts – Conditions for these to be inoperative – Possible invalidity of the other terms in the contract – National legislation – Compatibility – Jurisdiction of the Court)

1. By order of 10 June 2004, the Szombathelyi Városi Bíróság (Szombathely City Court) referred three questions to the Court for a preliminary ruling; two of these specifically relate to the interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (hereinafter ‘Directive 93/13’ or, simply, ‘the Directive’), (2) while the third concerns the applicability of Community law to a dispute which arose in a Member State before it acceded to the Union.

I – Legal background

A – Community law

Association Agreement and Treaty of Accession

2. The Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part (hereinafter the ‘Association Agreement’) was signed on 16 December 1991. (3) That agreement entered into force on 1 February 1994.

3. In terms of Article 67 of the Association Agreement:

‘The Contracting Parties recognise that the major precondition for Hungary’s economic integration into the Community is the approximation of that country’s existing and future legislation to that of the Community. Hungary shall act to ensure that future legislation is compatible with Community legislation as far as possible.’

4. Article 68 provides as follows:

‘The approximation of laws shall extend to the following areas in particular; ... consumer protection ... .’

5. Subsequently, on 16 April 2003, the Treaty of Accession by Hungary to the European Union (4) and the Act concerning the conditions of accession (hereinafter the ‘Act of Accession’) (5) were signed at Athens and both came into force on 1 May 2004.

6. Article 2 of the Act of Accession provides that:

‘From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.’

7. In particular, as regards existing directives, Article 53 provides that:

‘Upon accession, the new Member States shall be considered as being addressees of directives and decisions within the meaning of Article 249 of the EC Treaty ..., provided that those directives and decisions have been addressed to all the present Member States. Except with regard to directives and decisions which enter into force pursuant to Article 254(1) and 254(2) of the EC Treaty, the new Member States shall be considered as having received notification of such directives and decisions upon accession.’

8. Article 54 of the Act of Accession provides that:

‘The new Member States shall put into effect the measures necessary for them to comply, from the date of accession, with the provisions of directives and decisions within the meaning of Article 249 of the EC Treaty ..., unless another time-limit is provided for in the annexes referred to in Article 24 or in any other provisions of this Act or its annexes’.

Directive 93/13

9. The purpose of Directive 93/13 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’ (Article 1).

10. Pursuant to Article 2(b), ‘consumer’ means:

‘any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’.

11. Article 3(1) provides:

‘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.’

12. Article 4(1) provides that:

‘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.’

13. Further, Article 6(1) provides that:

‘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.’

14. Finally, Article 7(1) requires as follows:

‘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.’

15. Since neither the Act of Accession nor its annexes provided any other time-limit, Hungary was an addressee of Directive 93/13 and was required to put into effect the measures necessary for it to comply with that directive from the date of accession to the Union, that is, from 1 May 2004.

B – National law

16. Hungary ratified the Association Agreement by way of Law No 1/1994.

17. Pursuant to Article 3(1) of that law, the Hungarian legal system was required to ensure that the preparation and conclusion of international agreements and the drafting and adoption of national legal rules complied with the Agreement. Under Article 3(2) of that law, in drafting and adopting legal rules it was also necessary to meet the requirements imposed by Article 67 of the Association Agreement.

18. Law No CXLIX/97 was approved in accordance with that provision; this law amended a number of provisions of the Hungarian Civil Code (hereinafter the ‘Ptk’), introducing into national law rules on unfair terms in consumer contracts compatible with the rules in Directive 93/13. The documents before the Court indicate that those rules were not further amended after accession.

19. Article 209/B of the Ptk provides that:

‘1. A general condition of a contract or a term of a contract concluded between a consumer and a seller or supplier shall be regarded as unfair if, contrary to the requirement of good faith, it unilaterally and without justification establishes the parties’ contractual rights and obligations to the detriment of one of the parties.

2. Rights and obligations shall be regarded as having been established unilaterally and without justification to the detriment of one of the parties where:

(a) they deviate significantly from the substantive rules applicable to the contract; or

(b) they are incompatible with the purpose and function of the contract.

3. In assessing the unfairness of a contractual term, all of the circumstances attending the conclusion of the contract which led the parties to conclude it must be considered, as well as the nature of the service agreed and the relationship of the term at issue with other terms of the contract or of other contracts.’ (6)

20. For present purposes, particular note should be taken of the provisions in the Ptk on contesting unfair terms and those governing the consequences of including such terms in contracts.

21. With regard to the raising of an objection, the Ptk provides that if any general condition of the contract is unfair, the party prejudiced may contest it (Article 209(1)). The objection must be notified to the other party in writing within one year. Thereafter, the right of objection may still be exercised by raising an objection against the person seeking performance of the obligations under the contract (Article 236, paragraphs 1, 2(c) and 3).

22. Regarding the consequences of the inclusion of such terms, the Ptk adopts the principle that the contract is entirely invalid if the parties would not have concluded it without the invalid clause (Article 239).

II – Facts and procedure

23. The main proceedings are between Ynos Kft. (hereinafter ‘Ynos’), a company operating as an estate agent, and Mr János Varga, a builder.

24. Intending to sell a building owned by his son (7) and recently reconstructed as a commercial-office centre, on 10 January 2002 Mr Varga initialled a property agency agreement with Ynos, based on a standard-form contract which included a number of general terms and conditions.

25. Under that contract, upon successful completion of the agency activity, Ynos would be entitled to commission of 2% of the sale price agreed. Clause 5 of the contract stated that the agency was to be regarded as having been successfully completed upon conclusion of a contract between two parties who had been brought together through the agent; in the second sentence of that clause it was stated further that the agent was entitled to the commission even where the owner rejected a written offer to purchase or lease the property for a price equal to or above that specified in the agency contract.

26. On 11 March 2002, the directors of Ynos, Mr Varga and his son (the last as vendor) and Mr Ragasits and Mr Kovács (as purchasers) signed an ‘agreement in principle for the conclusion of the contract’, in which they fixed the selling price for the property and agreed that, by 15 March 2002, they would make a contract or a commitment to sell.

27. However, at that date neither a final contract nor a commitment to sell had been made. None the...