C-237/02
ECLI:EU:C:2003:504
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FREIBURGER KOMMUNALBAUTEN
OPINION OF ADVOCATE GENERAL GEELHOED delivered on 25 September 2003 1
I — Introduction strict limits to this interpretational task, given that the Directive allows the Member States a wide margin of discretion in deciding which terms they consider unfair within their respective national legal 1. In this case the Bundesgerichtshof (Fed- spheres. To construe this interpretational eral Court of Justice) has referred a ques- task broadly would significantly affect this tion on the interpretation of Council discretion, which — as will become appar- Directive 93/13/EEC of 5 April 1993 on ent below — was expressly not the inten- unfair terms in consumer contracts, 2here- tion of the Community legislature. inafter referred to as 'the Directive'. In particular, the Bundesgerichtshof asks whether a specific contractual term at issue in the main proceedings is to be regarded as being unfair within the meaning of Article 3 ( 1 ) of the Directive.
4. In short, it is primarily for the national court to decide whether a clause which is the subject of proceedings before it is to be treated as being unfair. 2. This question provides me with an opportunity to examine the scope of the Court's interpretational function where the assessment of potentially unfair terms in consumer contracts at issue before a national court is concerned.
II — Legal framework, facts and procedure
3. As can be concluded from the — as yet limited — case-law of the Court concerning this Directive, there are reasons for setting
5. The Directive's essential provisions are 1 — Original language: Dutch. set out in Article 3. In so far as relevant, this 2 — OJ 1993 L 95, p. 29. article reads as follows:
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'1. A contractual term which has not been der Allgemeinen Geschäftsbedingungen individually negotiated shall be (Law on standard business terms) and in a regarded as unfair if, contrary to the number of provisions in the Bürgerliches requirement of good faith, it causes a Gesetzbuch (German Civil Code). significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the con- sumer.
7. The main proceedings concern a dispute between Freiburger Kommunalbauten GmbH Baugesellschaft & Co. KG, the claimant, on the one hand, and Ulrike Hofstetter and Ludger Hofstetter, the defendants, on the other.
3. The Annex shall contain an indicative and non-exhaustive list of the terms 8. In the course of its commercial activities, which may be regarded as unfair.' the claimant, which is a municipal con- struction company, sold to the defendants by notarial contract of 5 May 1998 a car parking space for DEM 33 700, located in a car park which the construction company was to build. Under the contract of sale the total purchase price became due upon The unfairness of a contractual term is to be delivery of a security, but not, however, assessed by taking into account all the before 30 April 1999. In the event of circumstances attending the conclusion of arrears in payment, the purchaser was to the contract, as Article 4 of the Directive pay default interest. provides. Terms must be drafted in plain, intelligible language (Article 5). In accor- dance with Article 6 of the Directive, unfair terms used by a seller or supplier in a contract concluded with a consumer are, as provided for under their national law, not to be binding on the consumer. 9. The defendants paid the purchase price only after they had accepted the parking space, free of defects, on 21 December 1999. The claimant subsequently sought default interest for late payment. On appeal, the Oberlandesgericht Karlsruhe (Higher Regional Court) dismissed this 6. The Directive has ·— in so far as here action. The claimant appealed from the relevant — been implemented in Germany judgment of the Oberlandesgericht to the in Paragraph 9 of the Gesetz zur Regelung Bundesgerichtshof.
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10. In the context of this appeal on a point I I I — Assessment of law, the Bundesgerichtshof has referred the following question to the Court:
12. All of the observations submitted to the Court concern the interpretation of the clause at issue in the main proceedings. In view of the opinion at which I shall arrive below, I have considered it unnecessary to discuss these observations here, however valid they may be. In this Opinion, I shall confine myself to discussing the nature of 'Is a term, contained in a seller's standard the harmonisation resulting from the Direc- business conditions, which provides that tive and the consequences which this has the purchaser of a building which is to be for judicial review by the Court. constructed is to pay the total price for that building, irrespective of whether there has been any progress in the construction, provided that the seller has previously provided him with a guarantee from a credit institution securing any monetary claims the purchaser may have in respect of defective performance or non-perfor- 13. In its judgment in Commission v mance of the contract, to be regarded as Sweden, the Court drew a distinction unfair within the meaning of Article 3(1) of between Articles 3 to 6 4of the Directive, Council Directive 93/13/EEC of 5 April on the one hand, and the Annex referred to 1993 on unfair terms in consumer con- in Article 3(3) of the Directive, on the other. tracts?'
14. The Court established that Articles 3 to 6 grant rights to consumers and as such define the result sought by the Directive. The Court subsequently referred to its settled case-law according to which it is essential that the legal situation resulting 11. In the proceedings before the Court, from national implementing measures be the claimant and the defendants in the main proceedings and both the German Govern- ment and the Commission have submitted written observations. No hearing was held 3 — Case C-478/99 Commission v Swden, [2002] E C R 1-4147, particularly paragraph 18 cl seq. in this case. 4 — And Aruele 7, not relevant here.
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sufficiently precise and clear and that which provides that a contractual term may individuals be made fully aware of their not, contrary to the requirement of good rights so that, where appropriate, they may faith, cause a significant imbalance in the rely on them before the national courts. parties' rights and obligations arising under the contract to the detriment of the consumer.
15. The Annex, in contrast, in no way alters the result sought by the Directive which, as such, is required of the Member States. According to the terms of Article 3 (3), the Annex contains an indicative and non-exhaustive list of terms which may be regarded as unfair. It is common ground 18. The answer to the question of what that a term appearing in the list need not type of terms could cause such a significant necessarily be considered unfair and, con- imbalance has been left to the national versely, a term that does not appear in the authorities. list may none the less be regarded as unfair.
16. Consequently, the Court expressly established that the list contained in the Annex to the Directive does not restrict the freedom which the national authorities 19. In the first place, this concerns the have in deciding whether a particular clause national legislature. As also appears from is unfair. the above, Article 3 et seq. of the Directive are to be transposed into national legisla- tion. These articles provide a minimum level of consumer protection. The national legislature may establish measures provid- ing a higher level of protection for con- sumers, as Article 8 of the Directive makes clear. In this, the national legislature is free 17. From this I conclude that the Commu- to decide whether, and if so, how, it nity legislature did not intend to bring the transposes the Annex into national legisla- decision on the question whether a parti- tion. As I explained in my Opinion in cular clause is unfair within the scope of Commission v Sweden, 5 several alterna- application of Community law. Commu- tives are available. nity law merely establishes the abstract preconditions, as set out in Article 3 et seq. The most important precondition is laid down in Article 3(1) of the Directive, 5 — Case cited in footnote 3, point 43 of the Opinion.
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20. In the second place, an important role the light of the wording and purpose of the is reserved for national civil courts, as the Directive, must exclude of its own motion Directive concerns private-law relations the application of an unfair term conferring between private individuals. jurisdiction upon that — Spanish — national court.
21. In my Opinion in Commission v Sweden,6 I explained that the Directive permits the national judicial authorities, which also form part of the Member State's institutional structure, to offer consumers greater protection. I also referred to the justified observation of the Finnish Govern- 24. In Commission v Sweden, 8the Court ment in that case that in practice it is often examined whether sufficient account had precisely the national courts that add to and been taken, within the national legal sphere, further define the indicative list in the of the character of the Annex to the Annex to the Directive. Directive. As the Court held in that case, the list contained in the Annex to the Directive is of indicative and illustrative value and constitutes a source of informa- tion both for the national authorities responsible for applying the implementing measures and for individuals affected by 22. Under those circumstances, the Court's those measures. Member States must offer a supervision of the national legislature is sufficient guarantee that the public can limited in nature. The Court has exercised obtain knowledge of it. This does not its supervisory function in two previous necessitate the use of the instrument of cases. legislation.
23. The Océano Grupo 7 case concerned a failure to transpose the core provisions of the Directive into national legislation. The Court held that the national court, in accordance with the Court's settled case- law that in such cases provisions of national 25. In the context of its jurisdiction under law must be interpreted as far as possible in Article 234 EC to interpret Community law, the Court may also interpret the terms of Articles 3 to 7 of the Directive. The 6 — See footnote 5. 7 — Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, especially paragraph 30 et seq. 8 — Case cited in footnote 3, paragraph 22.
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question may thereby arise as to whether 29. It must be able to fulfil this role certain national rules offer the minimum without constantly having to refer to the level of protection required by the Direc- Court the question whether a contractual tive. term at issue between the parties in private- law proceedings is to be considered unfair. This is not merely a question of the clear demarcation of powers as between the Community and the Member States, but also one of the economical use of legal remedies. Given the general nature of the term 'unfair', the multiplicity of terms, both 26. The jurisdiction of the Court to inter- as regards form and content, which cur- pret Community law does not, however, rently appear in consumer agreements extend to the interpretation of contractual could give rise to continual references for terms at issue in a specific case before a preliminary rulings. national court. After all, as I have con- tended above, this does not involve a question of Community law.
27. It would be contrary to the Community legislature's premiss that it is for the national authorities to answer the question as to which contractual terms are to be considered unfair if the Community Courts were none the less to assess those terms. 30. Moreover, in this area there is no need for a uniform interpretation of Community law, quite apart from the fact that the Community legislature has not intended it. The terms in question are relevant only in private-law relations which are to a sig- nificant extent still governed by national 28. In this regard, I consider it important law, under which the same type of terms that the national court should play a central may even have different legal effects in role in ensuring application of the Directive, different national legal systems. From this albeit, of course, to the extent to which perspective, the Community legislature national law enables it to do so. 9 acted correctly in confining itself to estab- lishing a general rule in Article 3 of the Directive which is designed to result in a high level of consumer protection as pro- 9 — Unlike in the Océano Grupo case, failure to (adequately) transpose the Directive is not a subject of dispute here. vided for under Article 95(3) EC.
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IV — Conclusion
31. On the basis of the foregoing, I propose that the Court should reply as follows to the question referred for a preliminary ruling by the Bundesgerichtshof:
'It is for the national court to decide whether the contractual term at issue in the main proceedings is to be regarded as being unfair within the meaning of Article 3 (1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.'
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