On the 19th of December 2019, AG Tanchev delivered an
Opinion on Case C-511/17 (found here),
which deals with the scope of the obligation to assess the unfairness of contractual
terms ex officio, under Directive 93/13/EEC (Unfair Terms Directive). As
AG Tanchev starts by noting, this case is related to other cases on the
Hungarian framework on consumer credit agreements denominated in a foreign
currency (for example, Sziber C‑483/16, OTP Bank and OTP
Faktoring C‑51/17 and Dunai C‑118/17).
The ex officio
obligation in question is well established in the CJEU’s case law. This
obligation is aimed at ensuring an effective protection of the consumer under
the Unfair Terms Directive and it intends to restore the balance between the
consumer and the professional party (see, for example, OTP Bank and OTP
Faktoring C‑51/17 and Pannon GSM C‑243/08). As the AG acknowledges, the interpretative framework of
the obligation to assess unfairness of contractual terms ex officio affects
the civil procedure principle that the subject matter of an action is delimited
by the parties and the court can go no further than that subject matter (ne
ultra petita). In fact, the existence of this obligation means that under national procedural law the court must go beyond the object of the dispute
as originally defined by the parties (para 44).
The main question raised in this case was, as summarized by the AG,
whether a national court is required under Articles 6(1) and 7(1) of
Directive 93/13 to examine ex officio the unfairness of all of
the terms of the contract even if they are not necessary to decide on the
parties’ claims in the dispute. In other words, the question underlying this
case is whether that obligation should be unlimited and, if not, what the limits
of that obligation are. Must all contractual terms be examined for unfairness
based on the courts’ own motion?
To clarify, there are three different dimensions to this issue. First, whether
national courts must only assess the unfairness of the terms invoked by the
consumer or also the unfairness of other terms that the consumer did not invoke
(ex officio). Second, whether the courts must take the whole contract
into account when assessing the unfairness of the terms invoked. Third, whether
there is an ex officio obligation regarding investigative measures, if
the court does not have all the necessary elements to assess the unfairness of
a term.
All the parties’
observations – as well as the AG’s – agreed that an unlimited obligation to
assess the unfairness of contractual terms ex officio would largely (and
unnecessarily) hinder fundamental principles of national procedural law. Illustratively,
UniCredit Bank Hungary defended a triple criterion to limit the ex officio
obligation: a national court must examine unfair terms ex officio only
if i) the court has ‘the necessary legal and factual elements’ for that
examination, ii) if the term concerned is relevant to the decision to be given
and iii) if the term has a material and logical relationship with the case. In
its statement, Hungary followed the same lines of reasoning, arguing that the
court must examine ex officio ‘terms whose unfairness can be clearly
established, as a matter of fact, on the basis of the available evidence’.
Following the same logic, the AG concludes that Articles 6(1) and
7(1) of the Unfair Terms Directive require national courts to assess ex
officio the unfairness of contractual terms which are related to the
object of the dispute and have a link with the legal or factual
elements in the case file. This opinion suggests, therefore, a double criterion
to limit the ex officio obligation to assess unfair terms: a relation
between the clause and the object of the dispute and a link with existing legal or factual elements in the case. In other words, the courts’
obligation to assess ex officio the unfairness of contract terms does
not extend to all contract terms, but only those with a link to the case in
question. Consequently, AG Tanchev’s opinion is that national courts do not
have to examine ex officio all the other contractual terms for
unfairness, but merely to take all the other terms into account when examining
the unfairness of a specific term, according to Article 4(1) of the Unfair
Terms Directive.
This interpretation also means that it is not enough that the
contractual term is relevant to the object of the dispute, but it is also
necessary that the court possesses some legal and factual elements to determine
the unfairness of the term. AG Tanchev also states that Articles 6(1) and
7(1) of Directive 93/13 allow national courts to ‘take ex officio investigative
measures to complete the case file’ (e.g. asking for clarification or
documentary evidence from the parties) in order to obtain the necessary legal
and factual elements to carry out an ex officio examination
of unfairness (para 55). The AG’s opinion follows the CJEU decision in VB
Pénzügyi Lízing (C‑137/08). According to the AG, it appears
that if the national courts do not have the necessary legal or factual
elements, they are not obliged to assess the unfairness of the term, although they
are able (but not obliged) to request those elements from the parties.
While this interpretation
seems reasonable and it strikes a balance between fundamental principles of civil
procedure law and EU consumer protection, this last argument regarding ex
officio investigative measures is slightly more confusing than the previous
ones. In fact, as the AG acknowledges, the CJEU has previously highlighted the
need for ‘sufficient evidence’ in order to assess the unfairness of the
contractual terms (para 62). The AG addresses this aspect by stating that ‘this
may be viewed as lending support for the position that the national court has
at its disposal sufficient legal and factual elements for the ex
officio examination if necessary by being able to take ex
officio investigative measures to that effect’. More clarification on
this aspect in the final CJEU decision would be desirable.
