The CJEU clarified that the Unfair
Terms Directive does not oblige national courts to conduct any unfairness assessment
beyond the subject matter of the dispute (paragraph 28). In other words, as AG
Tanchev also defended, the CJEU highlighted the importance of protecting the ne
ultra petita principle. However, the CJEU considered that it is within the subject
matter of the dispute that national courts examine ex officio the
unfairness of contractual terms in order to guarantee a high consumer
protection, particularly to prevent the consumer’s claim from being rejected when
it could have been upheld had the consumer invoked the unfair nature of that
particular term (paragraph 32).
In addition, the CJEU established
that national courts are only obliged to carry out an ex officio
assessment of unfairness regarding those contractual terms whose unfairness can
be determined by existing elements of law and fact available to the court (Profi
Credit Polska case). However, in
order to implement the duty of ex officio examination, national courts
should not be confined exclusively to the elements of law and fact provided by
the parties (paragraph 36). This means that national courts can, of their own
motion, take investigative measures in order to complete the case file.
However, national courts should only do this if the existing elements of law
and fact ‘give rise to serious doubts as to the unfair nature of certain
clauses which were not invoked by the consumer but which are related to the
subject matter of the dispute’ (paragraph 37).
Finally, the CJEU
reiterated that in order to assess the unfairness of a contractual term (on
which the claim is based) the national court must take into account all the
other terms of the contract (Banif Plus Bank, C‑472/11). This obligation is justified by the fact
that the assessment of one or more specific terms must be contextualized, and
the ‘cumulative effect of all the terms of that contract’ must be taken into
account (paragraph 47). This does not mean, however, that there is an obligation
for the national court to ex officio assess the unfairness of all
individual clauses in the contract – it is rather a duty to contextualize
the assessment of unfairness. The CJEU also calls for a non-formalistic consumer
protection, that is, an interpretation of the claim that is based on the
comprehension of its content and of the laws it invokes (paragraph 33).
Therefore, the CJEU concluded that Article 6(1) of
the Unfair Terms Directive does not require national courts to examine every
individual contractual term ex officio. Instead, the Unfair Terms Directive
must be interpreted as imposing an obligation to examine only the contractual
terms which are connected to the subject matter of the dispute, as long
as the national courts have the legal and factual elements required for
that assessment (which can be supplemented by measures of inquiry). The CJEU
also determined that, while Articles 4(1), 6(1) and 7(1) impose a duty to take
all contractual terms into account, there is no duty for the national
court to individually assess the unfairness of each term.
In this specific case, the CJEU
determined that the terms that the consumer did not challenge but whose unfairness
assessment is required of the referring court are not connected to the subject
matter of the dispute in the main proceedings. Therefore, the national court
does not have a duty to ex officio assess the unfairness of those terms
(paragraph 39).
