Runaway closure as an extraordinary circumstance - CJEU in Moens (C-159/18)

Today the CJEU followed opinion of AG Tanchev (Crying over spilled fuel...) in the case Moens (C-159/18) and decided that if there is a fuel spilled on a runway, which leads the airport to close that runway, preventing flights from take off and landing, then the impacted air carriers may invoke the defence of extraordinary circumstances from Art. 5(3) Regulation 261/2004. Provided, of course, that the fuel spillage did not originate from the aircraft of the given air carrier, as only then the reason for closing of the runway will be unrelated to their business activity and beyond of their control (para. 13). Moreover, as it is the airport's management, who is responsible for the closure of the runway and the removal of the spilled fuel, the operating air carrier is not obliged to take any reasonable steps to remove the obstacle to their flight taking place. To the contrary, they are obliged to accept the decision of the airport's management and await re-opening of the runway or opening of an alternative runway for them (para. 28). With this judgment, following on the previous Germanwings case (Loose screws of Regulation No 261/2004...), the CJEU broadens the scope of the list of extraordinary circumstances allowing air carriers to forego payment of compensation for flight delays and cancellations.

The scope of non-standardized information provision under Directive 2008/48/EC- CJEU judgment in C-58/18 Schyns

A couple of days ago the CJEU delivered its judgment in case C-58/18 Michel Schyns v Banifius Banque SA. Luckily, the CJEU proceeded to decide on the merits of the case in spite of the vagueness of the application (see our report on AG Kokott's opinion in this case here).

The facts of the case

To remind ourselves, this case concerns the interpretation of Directive 2008/48/EC on Consumer Credit. In 2012 Mr Schyns concluded a contract with Home Vision for the installation of a photo-voltaic system (i.e. a solar power system) for the price of 40 002 euros. A couple of days later, Mr Schyns concluded a loan contract with the predecessor of Banifius Banque SA for 40 002 euros repayable in the next ten years in monthly installments of 472,72 euros. The loan was issued to Mr Schyns who subsequently transferred it to Home Vision. The photo-voltaic system was never installed, and Home Vision subsequently declared bankruptcy. In 2016 (after paying the installments for over 4 years) Mr Schyns commenced an action against the bank for setting the contract aside and terminating future performance.

The legal issues

This case raised interesting issues on the compatibility of Belgian law with Art. 5(6) of the Directive:
1) Are the rules requiring creditors to select a credit product suitable to the needs and the financial situation of the consumer incompatible with the above provision?
2) Are the rule requiring creditors to refuse to lend to consumers that cannot afford the loan contrary to the said provision?

The scope of 'adequate explanations' in Art. 5(6) of the Directive
The CJEU followed AG Kokott's opinion and answered the first question negatively. It is therefore not contrary to Art. 5(6) of the Directive for national laws to require creditors to recommend the most suitable loan taking into consideration the purpose of the loan and the consumer's financial situation at the time when the contract is concluded.
Given that the Directive does not provide for this obligation, and being a full harmonization instrument, one might question whether the Member States may go beyond what is provided in the provision. The CJEU is of the opinion that they can because of the last sentence of Art. 5(6) of the Directive provides that the Member States may adopt the manner in which and the extent to which 'adequate explanations' are given (para. 29). According to the CJEU, adapting the manner and extent of adequate explanations can extend the creditor's obligation to select the most suitable loan. The CJEU also supported its reasoning by reference to Recital 27 and Art. 5(1) according to which consumers may need additional help in selecting the right credit products for their financial needs and wants (para.30), and creditors, as professional lenders are best placed to provide this help to consumers (para. 33).
The CJEU reiterated that, on the one hand, consumers need pre-contractual information to make informed decisions; on the other hand, this pre-contractual information might need to be supplemented with more personalized information for making a fully informed decision (para. 34). However, the CJEU also emphasized that despite the obligation of the creditor to inform consumers and even to select the right credit product consumers to stay ultimately responsible for the choices they are making (para. 34).

Refusing to lend under the Directive
The second question answered by the CJEU tackled the extent to which the selection of the right credit product can reach. What should creditors do if in selecting the suitable credit product they consider that consumers cannot afford any loan?  Here too, the CJEU agreed with AG Kokott's opinion that it is not incompatible with the Directive for national laws to provide for an obligation to refuse to lend in a situation where creditors cannot be confident that consumers can dully fulfill their contractual obligations, i.e. pay the loan installments as they fall due (para. 49). Although the Directive does not directly provide for this obligation, this interpretation is compatible with  Art. 8(1) of the Directive on responsible lending and creditworthiness assessment and with the broader EU consumer policy reflected in Art. 18(5) of Directive 2014/17/EU that directly provides for an obligation to refuse to lend (para. 46).

Our evaluation
This is an important judgment that aims to clarify the scope of Art. 5(6) of the Directive. It does extend the scope of the provision and clarifies that adequate explanations can go beyond mere explanations of standard information provided within the Directive; that creditors may also be obliged to select or recommend the suitable loan for consumers (taking into consideration the consumers financial situation at the time when the contract is being concluded and the purpose of the loan). It remains however unclear whether this means an obligation of the creditor to provide financial advice? AG Kokott seems to have thought that it does, however, the court does not make any specific reference to financial advice. Financial advice being an independently regulated activity raises the doubt that it falls within the scope of the Directive. It requires licensed financial advisers (and not every bank clerk dealing with loans will comply with this requirement) and the advisers should take at least some responsibility for the advise they have provided. Given the final reservation of the CJEU that consumers bear the ultimate responsibility for the taken loan leads me to think that adequate explanations do not extend as far as the provision of financial advice. This remains an interesting question though that will need clarification in the future. We may also think whether the question of responsibility is adequately addressed by the CJEU. If creditors are obliged to select the right or suitable loan for the consumer, should they not take the responsibility for it then?

The second aspect of the judgment is also an important development in clarifying the scope of the Directive. Given the full harmonization nature of the Directive and its silence on the creditors obligation following a creditworthiness assessment, the CJEU's contribution to consumer protection by specially enabling Member States to provide the sanction of refusal to lend is an important one. Probably following Directive 2014/17/EC, the CJEU highlighted that the bank should refuse to lend any time it estimates consumers are unable to fulfill their payment obligations as they fall due, arguably aiming to observe the goals of sustainable lending.

ECJ in Orange Polska: Signing a contract in the presence of a courier is not an aggressive practice

On 12th June the CJEU issued its judgement on the Orange Polska case (C‑628/17) on the meaning of the aggressive practices provisions in the Unfair Commercial Practices Directive. This blog previously reported on the AG opinion on the case. The facts of the case will be summarised here, but they are analysed in greater detail in that post. 

The referring court asked whether the practice in question, where in order to conclude a telecommunication contract the consumer has to make the final decision in the presence of the courier employee who is handing him the contract terms, should be considered an aggressive practice with the use of undue influence, according to art. 8 and 9 UCPD.

The Court draws attention to the fact that the context of each individual case needs to be taken into account for determining the existence of a practice that uses harassment, coercion or undue influence (paras 30-31). This case-by-case factual analysis seems to be necessary only for aggressive practices, rather than all kinds of unfair practices.

The Court goes on to clarify that only undue influence is relevant in this particular case (para 32). However, the wording of articles 8 and 9 UCPD doe snot appear to demand identifying whether a practice is aggressive due to the use of harassment, coercion or undue influence.Making reference to point 45 of the AG Opinion the Court pointed out that undue influence is not necessarily impermissible influence but influence which, without prejudice to its lawfulness, actively entails, through the application of a certain degree of pressure, the forced conditioning of the consumer’s will.

Tne Court stated that the fact that the consumer was asked to sign a contract in the presence of a courier without having been sent the contract beforehand, but having had the chance to access it online, cannot be considered an aggressive practice (para 40) on its own.In assessing whether the consumer actually had a chance to receive information prior to the courier's visit, the quality of information plays an important role. The mode of communication is key as the information provided on a trader's website may be superior to that included in a phone conversation (para 42). Still, while more detailed information may be available on line, one could argue that over the phone, consumers may be able to focus on the the questions more relevant for them.

The Court is taking a restrictive view on what can amount to an aggressive practice, as it is pointed out that even if a consumer did not have the chance to access the information beforehand, that is not enough to classify it as an aggressive practice (para 43). Instead, the key criterion is the conduct of the trader. It is stated that conduct, such as the one in the case in question where the courier asks the consumer to take his final transactional decision without having time to study, at his convenience, the documents delivered to him by that courier, cannot constitute an aggressive commercial practice (para 45).

What is needed is something additional to the conduct above that would make the consumer feel uncomfortable and confuse his thinking in relation to the transactional decision at hand. Some examples of what might be considered aggressive includes:'the announcement that any delay in signing the contract or amendment would mean that the subsequent conclusion thereof would be possible only under less favourable conditions, or the fact that the consumer would risk having to pay contractual penalties or, in the event of the contract being amended, would risk the trader suspending the service'(para 48).

Another example was that of the courier informing the consumer that, if he refuses to sign or delays in signing the contract or amendment that has been delivered to him, he could receive an unfavourable assessment from his employer could also fall within that same category; an example similar to point 30 of Annex I of the UCPD, where a trader informs the consumer that if he does not buy the product, his job or livelihood will be in jeopardy.

Unfortunately, the opinion of the AG was not followed in this case and the Court was not daring enough in its interpretation of the aggressive practices provisions, as it was in Wind Tre, even though it was often cited in the judgement. Contrary to the AG opinion, the judgement does not engage at all with the average consumer standard. The judgement fails to provide a comprehensive mechanism for interpreting the provisions or indeed promote our understanding of what kind of pressure is the consumer expected to withstand. Instead, it repeats the phrasing of art.8 on making the consumer take a transactional decision he would not have taken otherwise. 

With this judgement the concept of aggressive practices is interpreted in a restrictive manner, in an effort to balance consumer protection with commercial realities, thus failing to make use of the potential of the provisions.

Un

On stowaway protection - AG Pitruzzella in Kanyeba (C-349/18 to C-351/18)

AG Pitruzzella published his opinion today in an usual referral asking for the interpretation of the provisions of the Unfair Contract Terms Directive as applicable to stowaways (travellers without a valid ticket). The odd-egg character of the Belgian case Kanyeba (joint cases C-349/18 to 351/18) concerns a possibility of there not being a consumer contract and the question of whether the UCTD could apply in administrative, non-contractual disputes.

There is a debate in Belgian law as to the character of the legal relationship between passengers who have not purchased a ticket for their journey and public transport providers. Some scholars argue that even if a traveller does not purchase a ticket, they enter into a contractual relationship with transport providers by walking into the 'travelers-only' zones (adhesion contracts). If this interpretation is followed, then when a stowaway is found and charged the price of the ticket plus any accompanying surcharges (increasing drastically if the ticket is not purchased at the moment of the ticket control), it would be possible to consider, e.g. whether the surcharges are based on fair terms and conditions, pursuant to the UCTD. Other scholars claim that it is a contractual relationship only when the traveller purchased a valid ticket for their journey. They recognise that in other cases a stowaway would not have had an opportunity to accept terms and conditions of the transport, and that the relationship would need to have been regulated by law rather than by contract. Interestingly, in the opinion the attention is drawn to the fact that in Belgian law the unfairness test may also be applied to either type of the legal relationship (para. 28). Regardless the answer as to the nature of the relationship between a stowaway and a transport provider, the UCTD might still apply in Belgium then.

AG Pitruzzella leaves it to national laws, and national courts, to determine the character of the legal relationship between stowaways and transport providers (paras. 40, 43). If the national law does not determine the matter, it is for the national court to establish. In the referred cases, it was clear that passengers had no intention of being bound by the transport contract, as they did not consent to its core conditions: the price (paras. 52-53). This should preclude the relationship as being determined as contractual, although AG Pitruzzella leaves the space for national courts to still do so (paras. 54-58). If the relationship is non-contractual, the UCTD normally would not apply (para. 60). This does not preclude Belgian law from extending the application of the UCTD to all relationships between consumers and traders, also non-contractual ones (para. 62).

We may find specific tips in the opinion of AG Pitruzzella on how to assess the unfairness of surcharges in such circumstances. Namely, as the unfairness test should consider all circumstances surrounding the conclusion of an agreement (or alternatively of the legal relationship between the parties), it seems crucial for national courts to balance private and public interests in stowaway cases. After all, surcharges are supposed to discourage illegal behaviour of a travel without a valid ticket and to protect traders' interests in easier enforcement of travel prices (paras. 63-64). If passengers consider such surcharges as being of a significant detriment to them and distorting the contractual balance, they could have protected themselves against them by a timely ticket purchase.

Intransparency of transparency case law? CJEU in C-38/17 GT v HS

Last Wednesday the Court of Justice delivered a judgment in case C-38/17 GT v HS. On the face of it, the case seems like just another dispute concerning a credit agreement with potentially intransparent terms, specifically terms defining the applicable exchange rate for the loan denominated in foreign currency. On a closer look, a more peculiar picture emerges: the questions asked by the referring court seem to miss the harmonized EU rules, the Commission argues for inadmissibility, Advocate-General decides not to present a written opinion, and at the end of that messy process the Court issues a judgment which might raise at least several eyebrows (for a context see one of the earlier posts published on this blog Forward to the past...).

Facts of the case

The case involved a consumer who concluded a currency-denominated loan agreement and the precise amount of the loan in foreign currency was established only after the agreement had been concluded. Specifically, at the time of contract conclusion the amount of the loan was established on the basis of the sum required in Hungarian forints, applying the exchange rate in force at the time the funds were released. The relevant rate was communicated to the consumer approximately 1.5 month later. There is nothing in the case as to whether the consumer knew in advance about the way in which the exchange rate was to be calculated. In these roughly sketched circumstances, the referring court was wondering whether an array of EU rules and principles, including Articles 4(2) and 5 Directive 93/13 on unfair terms, can be read as obliging the trader to inform the consumer, in clear and intelligible language, before entering into an agreement, about core contractual terms, as a condition of validity of the agreement. The Court of Justice read the reference made by the national court as inquiring whether Articles 3(1), 4(2) and 6(1) of Directive 93/13 preclude the legislation of a Member State, as interpreted by the Supreme Court of that Member State, under which a loan agreement is not invalid where it is denominated in foreign currency and does not indicate the exchange rate applicable to the loan sum for the purpose of determining the definitive amount of the loan, but at the same time stipulates, in one of its terms, that that rate will be set by the lender in a separate document after the agreement has been concluded. In the process of reformulating the question the Court dropped a reference to Article 5 UCTD, which concerns the transparency of terms formulated in writing and establishes a rule that, in the case of doubts, interpretation most favourable to the consumer shall prevail.

Judgment of the Court

In its judgment the Court follows a sequence of steps: since we are talking about a core term, the first question is whether the relevant term is phrased in plain intelligible language in line with Article 4(2) UCTD. If it is, our job is done, no consequences can be drawn against such a term on the basis of the analysed directive. If it is not, we move to the second step and carry out a substantive assessment on the basis Article 3(1). If unfairness is established, the sanction of invalidity, as a matter of principle, only applies to the term in question. Only if the agreement cannot function without the relevant term it can be deemed invalid in its entirety.

Let us first focus on the assessment whether a term is phrased in "plain intelligible language". The Court first recalls some of it earlier case law highlighting that the transparency requirement cannot be reduced merely to the terms being "formally and grammatically intelligible" (see eg our earlier post on the Court's judgment in Andriciuc). Rather, due to the consumer's weaker position vis-à-vis the trader, the requirement must be understood in a broad sense. In particular, according to the Court, "the contract should indicate transparently and specifically how the mechanism to which the relevant term relates is to function and, where appropriate, the relationship between that mechanism and that provided for by other contractual terms", so that that consumer "is in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the contract".

Applied to the case at hand the requirement implies that "the mechanism for calculating the amount lent, expressed in foreign currency, and the exchange rate applicable must be indicated transparently, so that a reasonably well-informed and reasonably observant and circumspect consumer may evaluate, on the basis of clear, intelligible criteria, the economic consequences for him of entering into the agreement, including, in particular, the total cost of the loan" (para. 34). So far so good. Note, however, that the question is to be examined "in the light of all relevant facts" including promotional material and information provided to consumers during negotiations (para. 35). Surely, the contextual background seems important and indeed follows from the earlier case law, but what does it mean exactly in the case like the one at hand? Can information provided during negotiations make an otherwise intransparent term transparent? If so, how does this relate to Article 5 of the UCTD? The Court does not say. 

What may worry consumer advocates even more is the point in time, at which an appropriate level of transparency should be achieved. In particular, as noted by the Court in para. 36: the seller or supplier cannot be expected to have specified all the relevant details at the time the agreement was concluded. Again, it is not clear which "relevant details" can be skipped at the time of entering into a contract. Understandably, the exact exchange rate will often not be known in advance. But what about the way in which the exchange rate is to be calculated? 

Because the assessment is left to the national court, the Court then moves to the second stage, that is whether the relevant term can be considered unfair. In this respect, the focus of the Court remains on the wording of Article 3(1): whether, contrary to the requirement of good faith, a term causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer concerned. Also here the Court does not offer much of a clarification, besides noting that the assessment should consider "the nature of the goods or services" as well as, again, "the circumstances attending the conclusion of the agreement ... which could have been known to the seller or supplier at that time the agreement was concluded and ... could affect the future performance of the agreement (paras. 39 and 40). 

Concluding thought

While the reference to the circumstances attending the conclusion of the agreement may, at the end of the day, work in consumer's advantage ("a contractual term which manifests itself only during the performance of the agreement term may give rise to an imbalance between the parties", para. 40), the judgment leaves more questions open than it answers. It is not clear, in particular, whether the Court retracts on its earlier judgment in VKI, where it found that "the unfairness of ... a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of Directive 93/13" (para. 68). Does the resulting imbalance already relate to the consumer's uncertainty about the scope of his obligations? Or should it rather be established by looking at the relevant rights and duties and comparing them on the merits? 

Finally, we should not forget that all the rules we are talking about in here are minimum harmonisation rules. To recall, in Ahorros the Court made it clear that Member States may adopt national legislation which authorises a judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language. The same is true for additional rules concerning bringing terms to consumers' attention (eg German rules on Einbeziehungskontrolle) or the consequences of intransparency (eg intransparency as a self-standing ground for invalidity). Of course, the judgment does not say otherwise - and let us not be fooled that it does. 

Return to sender - CJEU in Fülla (C-52/18) on bulky non-conforming goods

We have not yet had a chance to address the CJEU's judgment of 23 May in the case Fülla (C-52/18). As we have mentioned in the comment on the AG Wahl's opinion, Mr Fülla was convinced that a party tent he has ordered on the phone was not in conformity with this order. The trader was disputing this claim, but the main issue of the case was the lack of a proper communication between the parties as to where and on what conditions the goods could be brought into conformity to begin with. Mr Fülla demanded that the tent was brought into conformity at his place of residence and did not offer to return it. The trader expected the goods to be returned, but did not inform of this requirement the consumer nor offered to advance the postage costs for the return of the goods.

As it was mentioned in our previous comment, and following the opinion of AG Wahl, the CJEU also leaves the determination of the place, in which the goods should be brought into conformity, to the discretion of national laws (para. 46). After all, the place has not been specified in the Consumer Sales Directive, except for its provisions requiring that the determination of such a place enabled repair or replacement: free of charge, within a reasonable time and without significant inconvenience to the consumer (para. 32). Therefore, national courts have to take into account these three requirements, as well, in their interpretation of national laws in accordance with EU law (para. 47). The CJEU emphasises that consumers could experience some inconvenience when having to package and deliver goods to a place where they will be brought back into conformity. It just cannot be a significant inconvenience (para. 40). However, due to the character of certain goods (e.g. that are heavy or bulky) a need to send/transport them to a place other than their location with the consumer may automatically constitute a significant inconvenience (para. 43). It is worth to note that the CJEU is not overly concerned with the lack of harmonisation that such a solution would lead to, as the CSD is in any case a minimum harmonisation directive.

When a consumer sends the goods back to a trader, claiming that they are non-conforming, the question arises whether the trader needs to advance the costs of posting the goods back to him. The CJEU considers such an obligation too far-reaching and able to distort the balance of rights and obligations of both parties. The main argument here is that the goods may turn out not to be non-conforming and that advancing such postage costs could also slow down the process of bringing the goods back into conformity (para. 53). Therefore, in general, consumers may only expect that the postage costs will be reimbursed to them after the non-conformity is confirmed by the trader. However, the situation is different if the advance of postage costs would be necessary in order not to prevent the consumer from making use of their rights (para. 55). Therefore, in specific cases where the transport is costly, e.g., traders could be required to advance such costs. We may expect some disputes arising to determine when exactly such a significant inconvenience would arise.

Finally, the CJEU addresses the issue of the hierarchy of remedies. As a consumer may only then terminate the contract due to non-conformity if a trader was first given an opportunity to remedy that non-conformity, the question was whether in a given case this condition was fulfilled. After all, Mr Fülla did not deliver the tent to the trader's place of business. The CJEU answers this in the affirmative. As the consumer notified the trader of the non-conformity and of the fact that the repair/replacement could occur at his home, when the transport of goods was likely to cause a significant inconvenience to consumers, and the trader did not inform the consumer about his requirement for the place at which repair/replacement could occur - the consumer could terminate the contract on the basis of the non-conformity (para. 65).