Thursday, 15 January 2015

ECJ: Also lawyers have to abide the Unfair Terms Directive ...

Today, the ECJ delivered its decision in Case C‑537/13, Birutė Šiba v Arūnas Devėnas.
The case concerned a series of non-negotiated contracts concluded by the parties and concerning legal assistance to be provided in the context of a series of court proceedings concerning Ms Šiba's private life. 
Later on, some controversy arose regarding the fees to be paid for such assistance and the matter ended up in a series of court decisions. In challenging the Appelate Court's decision in cassation,
Ms Šiba (or, we guess, her new lawyer!) argued that the previous courts failed to take into account her consumer status, which would have required the contracts to be interpreted to her advantage. 

Hence the questions raised by the referring court, which the ECJ summarised as follows:
whether Directive 93/13 must be interpreted as applying to standard-form contracts for legal services, such as those at issue in the main proceedings, concluded by a lawyer with a natural person who is acting for purposes outside his trade, business or profession.
 The Court concluded that the Directive is applicable, as no specific characteristic of the legal profession requires that contracts between lawyers and "client-consumers" (para 23) are exempted from unfair terms control. Except when such characteristics suggest otherwise, "[it] is [...] by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that the directive defines the contracts to which it applies" (para 21).
The lawyer herself renounces to this line of argument when she decides to "use standard terms which do not reflect mandatory statutory or regulatory provisions within the meaning of Article 1(2) of Directive 93/13" (para 27).
In particular, although the fact is not clearly spelled out in the decision, it seems likely that Mr Devėnas had argued that the confidential nature of the lawyer-client relationship stands against the disclosure of contracts for legal advice before a court (see para 31). The Court finds this defence ulikely to have a meaning, since "contractual terms which have not been individually negotiated, in particular those which are drafted for general use, do not contain, as such, personal information relating to lawyers’ clients, disclosure of which might undermine the confidentiality of the legal profession." (ibidem). Should such terms be specific to a particular client, there would be reason to consider them as negotiated terms- which would in turn make them exempt from control.

As such, however, the terms are generally subject to scrutiny.

This new decision joins Asbeek Brusse in expanding the reach of Directive 93/13 beyond its more straightforward domain of application- consumer sales and commercial services- into less explored domains. It will be interesting to see whether the ECJ's stance will influence consumer's attitudes to contracts for legal assistance- especially considered that this would require lawyers to challenge the terms adopted by some of their colleagues...

1 comment:


  1. Since an overview is intended here, the non-priority services in Annex II B are presented without the binding CPC references or the helpful CPV (Common Procurement Vocabulary) family lawyer Tweed Heads

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