Produce Labels and the Circular Economy: CJEU interprets "Packaging" in Interfel (C-772/24)

On August 1, the CJEU delivered an interesting judgment in Interfel (C-772/24), which could assist in promoting sustainable consumption. 

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In an effort to combat waste and support circular economy, French law prohibited the placing of labels directly on fruit or vegetables sold on French territory, unless the labels were home-compostable and made of bio-sourced materials (para 8). The idea was straightforward: consumers could more easily and sustainably dispose of spoiled fruit or vegetables. (Who has not spent hours of their life removing annoyingly sticky, unwilling-to-just-let-go labels from produce?) 

However, the question arose whether this national rule complied with Directive 94/62 on packaging and packaging waste. Article 18 of the Directive requires the Member States to permit the sale of products on their territory if their packaging complies with the Directive. This provision prevents Member States from imposing additional restrictions that could hinder the internal market.

The CJEU began by emphasising the Directive's environmental objectives: to reduce the impact of packaging and packaging waste on the environment, covering all packaging placed on the market (para 12). To assess whether the French measures complied with EU law, the Court examined the Directive's definition of "packaging". The term must be interpreted broadly (para 13), but still fulfil one of the functions set out in the Directive, namely: "containment, protection, handling, delivery and presentation of goods" (para 15). Packaging must also fall into one of the three categories: "sales packaging, grouped packaging or transport packaging" (para 17). Ancillary elements integrated into packaging are also considered packaging (para 20). Annex I to the Directive provides illustrative examples of packaging, including "labels hung directly on or attached to a product" (para 21).

In answering the national court's question, the CJEU stressed that, to qualify as packaging, a product must meet the above criteria (para 25). Specifically, it must perform at least one of the three main packaging functions: containment/protection, handling/delivery, or presentation. Labels on fruit and vegetables are typically smaller than the produce itself and therefore unlikely to provide containment or protection (para 28). Nor are they generally used for handling or delivery purposes (para 29). The remaining question was whether labels serve a presentation function - a matter the Court noted could depend on the specific context/ label (para 30).

In conclusion, the CJEU indicated that France may impose additional sustainable requirements for such labels, but only where the labels do not perform any of the three functions assigned to packaging under EU law.

Polish bankruptcy law fails consumers with unfair loan terms - CJEU in Wiszkier (C-582/23)

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In July 2025, the CJEU issued a judgment in Wiszkier (C-582/23), concerning a Polish case involving a consumer mortgage loan indexed to Swiss francs. In this instance, the consumer had to declare bankruptcy after being unable to meet, among other obligations, their mortgage payments. Although the bankruptcy court found that the contract potentially contained unfair terms, raising the possibility of the contract being null and void, Polish law prohibits this court from examining this issue further. Under Polish law, even if the unfairness of contract terms had not been previously raised by the consumer, the bankruptcy court is only competent to approve or reject a repayment plan based on a list of claims drawn up by the trustee (paras 26-27). At most, the court may stay the proceedings and refer the unfairness' matter to another competent, supervisory authority (paras 29 and 45). 

Unfairness assessment by the bankruptcy court 

Decision: Incompatibility with EU law. Unsurprisingly, the CJEU found Polish law incompatible with EU law. Specifically, it held that the Unfair Contract Terms Directive precludes national provisions that prevent a bankruptcy court from examining the unfairness of contract terms in a loan agreement underlying a claim included in the list of claims, or from amending that list, where no such assessment has been conducted by the authority preparing the list (para 58).

Although EU law leaves enforcement of consumer protection rules against unfair contract terms to the Member States, such national rules must comply with the principles of equivalence and effectiveness (para 40). The CJEU found that the principle of effectiveness was violated in this case. While Polish law allows a bankruptcy court to stay proceedings so that a supervisory court may assess the potential unfairness of contract terms, this process introduces delay and exposes consumers to further financial hardship. During the stay, the bankrupt's salary continues to be withheld by the bankruptcy estate, which may discourage consumers from raising objections based on unfair terms (para 46). Notably, monthly repayments set in bankruptcy proceedings are often lower than the salary amounts withheld during the proceedings (para 47), exacerbating the financial strain. Moreover, in this case, although the consumer had acknowledged all the claims listed by the trustee, this was done without legal representation and likely without understanding that an unfairness objection could be raised (para 52). The consumer only raised this issue. through legal counsel, once the case reached the bankruptcy court (para 53). The CJEU clarified that it is irrelevant whether the list of claims has become res judicata (para 55).

Interim measures by the bankruptcy court

Decision: The CJEU further ruled that national law must enable bankruptcy courts to grant interim measures to protect consumers while the fairness of a claim included in the list is under judicial review.

The Court reiterated that ensuring effective consumer protection against unfair terms may require granting interim measures, for example, adjusting monthly instalments during prolonged proceedings to prevent consumers from being forced to pay more than the amount actually due if the unfair terms were ultimately invalidated (paras 67-68). As noted by the referring court, the fear of higher interim payments to the bankruptcy estate may deter consumers from raising unfairness objections altogether (para 69). The court responsible for granting interim measures must consider: "whether there is sufficient evidence that the contractual terms concerned are unfair, whether there is a real possibility that the bankruptcy estate is already sufficiently funded to satisfy the creditors, with the exception, as the case may be, of the claim concerned, as well as the bankrupt's financial situation and the risk of that person having to endure a prolongation of the bankruptcy proceedings which could result in an unwarranted deterioration in his or her financial situation pending the conclusion of those proceedings." (para 71)

Delayed bags, immediate compensation rights - CJEU in Iberia (C-292/24)

On June 5, the CJEU issued a new judgment interpreting the Montreal convention, which governs rules for international air carriage, in the case Iberia (C-292/24). 

The case arose when passengers traveling from Frankfurt am Main (Germany) to Panama City (Panama), with a layover in Madrid (Spain), discovered that their checked-in luggage had not arrived in Panama. They reported the baggage as lost to Iberia and informed the airline that, unless they received an update within three days, they would buy replacement items and continue with their travel plans - which they ultimately did. They also had to rebook their outgoing flights from Panama City due to the delay. The luggage was eventually delivered to Panama City five days after their scheduled arrival. The passengers subsequently sought reimbursement for the cost of replacement items, additional travel expenses, and the rebooked flights. 

The legal question concerned the interpretation of the reporting deadlines set out in Article 31(2) of the Montreal Convention in cases of delayed or lost baggage. Article 31(2) states that 

'the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.'

The key issue was whether this deadline prevents passengers from claiming compensation for damage caused by a baggage delay before the baggage is returned, or whether they may do so only after they receive the baggage as the full scope of their damage may only then materialise. 

The CJEU adopted an interpretation of Article 31(2) of the Montreal Convention that is favourable to passengers. It held that passengers may submit a claim for damages arising from delayed baggage before the baggage is returned. According to the Court, the 21-period specified in Article 31(2) marks the latest possible moment to file a complaint - but not the earliest (para 20). By applying a literal interpretation of the provision, the CJEU found that passengers are entitled to submit a claim for compensation at any time between the moment their baggage is delayed and the expiry of the 21-day period following its return (para 21). 

Interestingly, the CJEU also noted that this interpretation benefits air carriers, as well. Early notification allows airlines to investigate the situation promptly, potentially mitigating the damage, and collect evidence to demonstrate that they took all reasonable steps to prevent the harm (paras 29-30).

Consumers' access to interim relief - the CJEU in Myszak (C-324/23)

In case C-324/23 (Myszak) the Court of Justice of the European Union was asked again to deal with the consequences of mortgage loan agreements indexed in Swiss francs. 

The case concerns a mortgage loan contract indexed in Swiss francs whose voidance was claimed by three consumers against the Getin Noble Bank S.A. Consumers claimed the unfairness of the contractual term in question, according to Directive 93/13/EEC. Accordingly, sought interim relief in court, in order to suspend the execution of the contract containing unfair terms.

Meanwhile, however, the Bank went through a resolution procedure. Polish law bars the possibility to ask interim measures against bank dealing with special resolution procedures, according to the law implementing Directive 2014/59/EU (the Bank Recovery and Resolution Directive). 

The Polish court asked the CJEU about the compatibility with Articles 6(1) and 7(1) of UCTD and Article 70(1) and (4) of the Bank Recovery and Resolution Directive of the national law. Pursuant to relevant Polish law it is not possible to grant a consumer’s application for an interim measure to suspend, during the course of the court proceedings, the obligation to pay the loan instalments under a loan agreement which is likely to be declared invalid, on the sole ground that it was granted by a bank declared to be under special resolution.

The CJEU affirmed that a statutory provision barring consumers to obtain interim relief during resolution procedures impairs consumers to exercise their rights, and thus goes against EU law.

The Court invoked the principle of effectiveness, claiming that impeding consumers to exercise their rights because of a bank’s resolution would impact on the effective enforcement of the UCTD. The Court of Justice has, on a number of occasions, made general statements on the need for national courts to be able to adopt interim measures for the full effectiveness of court decisions concerning rights granted by EU law (see, among others, Case C-213/89, Factortame).

Although the Bank Recovery and Resolution Directive allows Member States’ laws to specify and define the procedural means of its implementation, national laws implementing it should not impede consumer protection. Accordingly, a provision barring the enforcement of UCTD, precluding adoption of interim measures, is contrary to EU law.

The decision reinforces a well-established pattern in the Court of Justice’s rulings: when in doubt, in favour of the consumer!

Deferred payment option as a ‘promotional offer’: CJEU in bonprix (C-100/24)

In bonprix (Case C-100/24), the CJEU was asked to clarify the meaning of ‘promotional offers’ under Art. 6(c) of the E-commerce Directive. According to this provision, any such offers must clearly outline the conditions for eligibility. The disputed practice was an advertising message that bonprix, an online trading company, put on its website: ‘Convenient purchase on invoice’. It was contested that this message is misleading as it leaves out the fact that such a payment arrangement is subject to a prior assessment of the consumer’s creditworthiness. It is thus necessary to establish whether the message on bonprix’ website is a ‘promotional offer’ in the first place – a concept that is not directly defined under the Directive.

First, according to a literal interpretation, ‘promotional offers’ can include ‘any form of communication by which a provider seeks to promote goods or services to the recipient by giving him or her an advantage’ (para 24), which is still rather broad.

Second, according to a contextual interpretation, since Art. 6(c) of the E-commerce Directive included some illustrative examples such as ‘discounts, premiums and gifts’, for ‘reasons of consistency’, ‘promotional offers’ must have ‘the characteristics common to’ these examples (para 25). The CJEU outlined three such characteristics: the conferral of an advantage that is

1. objective, i.e. not left to ‘the subjective assessment of that recipient’ (para 26),
2.  certain, i.e. ‘does not depend on chance or selection’ (para 27, per the distinction between ‘promotional offers’ under Art. 6(c) and ‘promotional competitions and games’ under Art. 6(d)), and that is
3. ‘capable of influencing that recipient’s consumption behaviour’ (para 28).

In response to bonprix’ arguments, the CJEU added that ‘promotional offers’ are neither defined by ‘the existence of a substantial monetary advantage for its recipient’ nor by ‘its exceptional nature’ (paras 29-31). The form and extent of the advantage is ‘immaterial’ and may be ‘monetary, legal or mere convenience, such as to enable the recipient to gain time’ (para 32). In the context of the disputed practice, the CJEU highlighted some potential benefits of bonprix’ offer: the deferral of payment provides the consumer with ‘a cash advance’ and represents ‘a monetary advantage, albeit minimal’ (para 43); in the event of extinguishment of the contract due to withdrawal or termination, ‘the purchaser does not need to claim reimbursement of the price’ (para 44).

Third, according to a teleological interpretation, the CJEU confirmed that subjecting the disputed practice to Art. 6(c) of the E-commerce Directive can ‘contribute to a high level of consumer protection, without, however, entailing unreasonable economic burdens for service providers’ (para 34). By informing the consumer that the deferred payment option is subject to a creditworthiness test and thereby making the consumer realise that they may be refused the option, it ensures consumer protection ‘at all stages of contact between the provider and the recipient of a service’ (para 35). Finally, the CJEU also added that its interpretation of Art. 6(c) of the E-commerce Directive is fully compatible with the Unfair Commercial Practices Directive (particularly its Art. 3(4) and its general prohibition of misleading practices) and the Consumer Rights Directive (particularly its Art. 6(8)).

The Court’s broad interpretation of ‘promotional offers’ should be welcomed as a positive move to strengthen consumer protection through information. It represents a more inclusive understanding of the factors that drive consumers’ purchase decisions, in particular convenience. Of course, it should also be borne in mind that the disputed practice in this case is in any event a ‘commercial practice’ within the scope of EU law.

Comparison websites outside scope of comparative advertising: CJEU in HUK-Coburg (C‑697/23)

For those who are on the lookout for good value for money, price comparison websites are a go-to tool. While ‘comparative advertising’ is regulated by Directive 2006/114/EC, it is unclear whether comparison services offered by third-party websites fall within its scope. The CJEU clarified this point in Case C‑697/23.

The case concerned Check24, a website that compares various products, including insurance packages, by awarding scores based on criteria like price. The website also enables, as an intermediary, the conclusion of contracts between customers and insurance providers. HUK-Coburg, whose insurance products were listed on Check24, sued the platform for violating the objectivity requirement under Art. 4(c) of Directive 2006/114/EC. Though the question pertains to the interpretation of Art. 4(c), the CJEU instead focused on the scope of the Directive, namely its definition of ‘comparative advertising’ under Article 2(c).

The CJEU first recalled that the key element of ‘comparative advertising’ is the identification of ‘a competitor’ – either of the advertiser or of the advertised goods/services. Thus, Check24 must be a competitor of HUK-Coburg to fall under the scope of the Directive (para 28). To assess this, the CJEU proposed ‘an analysis of the possible substitutability of the services offered by the parties […] in order to determine whether they operate in the same market’ (para 34, emphasis added). Pending further verification by the referring court, the CJEU pointed out that Check24 itself does not provide insurance services but merely offers comparison and intermediary services, meaning that it offers non-substitutable services to those of HUK-Coburg and operates in a different service market (para 37). The concept of ‘comparative advertising’ under Article 2(c) thus does not include such an online comparison service or such a mere intermediary service.

While it makes sense that third-party comparison services are not regulated as comparative advertising between competitors, these services are still subject to other consumer protection instruments, such as the Consumer Rights Directive and Unfair Commercial Practices Directive, which, according to the Commission, remain under-enforced.

A milestone for Polish consumers claiming unfairness of Swiss francs mortgage loans - CJEU in Lubreczlik (C-396/24)

Yesterday, the CJEU issued a new judgment in the Swiss franc mortgage loans and their unfair contract terms saga, following a referral from a Polish court, in the case known as Lubreczlik (C-396/24). The referral was based on two cases, in which consumers concluded mortgage loans indexed to the Swiss franc rate. In both cases consumers claimed repayment of sums they had paid to the bank on the basis of their mortgage contracts being void due to unfair contract terms they contained. The bank counterclaimed seeking that consumers paid the full loan amount back to the bank. 

Previously, the Polish Supreme Court issued a judgment with a so-called 'two claims' theory (see declaration III CZP 11/20 from 16 February 2021 - in Polish here). This theory acknowledged that after a loan agreement is declared invalid, both parties (consumer and lender) have a right, "distinct and independent of each other, to repayment of monetary payments made in performance of that agreement. Each of the parties could therefore claim full repayment of the sums paid, whether or not it is still a debtor of the other party and regardless of the amount of its own debt" (para 26).

Imagine now situations (very common in practice), in which consumers have already paid the whole amount of their loan to the bank, or even paid to the bank sums exceeding the total loan value, on the basis of high interest rates. While waiting for their claims of unfairness to be adjudicated by Polish courts or the judgments to become final and the bank to return their money to them, they receive a lawsuit from the bank for the repayment of the full amount of the loan. Often, such a (de facto, repeated) repayment would either be financially impossible or significantly detrimental to consumers (even if made in the expectation of the eventual repayment by the bank of the same or higher sum of money) (para 27). Further procedural rules make it also feasible that any repayment by a consumer of the money to the bank will be immediately enforceable, while the bank's obligation to repay the consumer may take a long time to reach that stage (para 32). Consumers could theoretically argue for a set-off of reciprocal claims, but Polish procedural rules make such a declaration complex and not necessarily favouring consumer interests (para 28).

Repayment of the loan amount by a consumer

The CJEU leaves no doubt that Polish (case) law may not allow banks to claim repayment of the full loan amount, regardless of the value of repayments already made by consumers in performance of the loan agreement and "irrespective of the amount remaining due" (para 44). The CJEU recalls the need for the Member States to ensure that the national protection against unfair contract terms is a deterrent for sellers and suppliers against embedding such terms in their contracts (para 38). Further, national law needs to protect consumers against the detriment of having their contract's annulled as a result of them containing unfair contract terms (para 39). These obligations may result in Polish courts being required to "change established case-law", if following such national case law would lead to undermining EU consumer protection's objectives (para 43).

Polish courts should then disregard the Polish Supreme Court's theory of "two claims" in assessing the banks' claims for repayment of the full amount of loan by consumers, if consumers already had paid back at least part of the mortgage loan to the bank. This should mean in practice that banks claims filed against consumers should be scaled down in consideration of the actual repayments that consumers have already made. Strategic litigation by banks against consumers for the repayment of full loan amounts becomes much more risky as a result of this judgment.

Immediate enforceability of consumer repayments

The CJEU also addressed the matter of Polish courts being required to award of their own motion immediate enforceability to repayment claims made by banks against consumers, if consumers accepted such claims (and they may have good reasons to accept them - see para 51 of the judgment for more information). The Court considers also this practice contrary to EU consumer protection objectives, as long as Polish courts are not allowed to consider in their decision-making detriment to the consumer that such an immediate enforceability order would have (para 58). 

This part of the CJEU's judgment protects consumers against the immediate need to repay the money to the bank, which could have dissuaded them from progressing with their unfairness claims.

Overall, this judgment raises financial risks for these banks that were not keen so far to settle consumer cases and which have used various intimidation tactics to dissuade consumers from pursuing their claims. It may also lead to banks proposing more beneficial settlements to consumers and encourage consumers to negotiate settlement terms.

Reaffirming Established Case Law, Withholding Guidance? – CJEU in APS Beta Bulgaria (Case C-337/23)

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The recent ruling in APS Beta Bulgaria (C-337/23) provides another example of the Court of Justice reaffirming its established case law on consumer credit. However, it also illustrates a more subtle tendency: interpretative restraint. 

This post argues that, while the Court preserves the continuity of its case law, its reluctance to provide detailed interpretative guidance risks undermining the aim of achieving a high level of consumer protection.

Facts of the Case

In the case at hand, consumer-borrowers concluded credit agreements with Easy Asset Management AD and Credissimo AD, with an annual percentage rate of charge (APRC) of approximately 40–50% and repayment terms between three and eighteen months.  Under each agreement, consumers were required to provide security, including a guarantee, for which specific fees - exceeding 75% of the total amount repayable under the credit agreement - were charged. The guarantee was to be provided either by two natural persons meeting certain criteria, or by a bank or company selected or approved by the creditor. In each instance, the consumers tendered a guarantee from a company nominated by the creditor, including in one case a subsidiary of the creditor itself. Under Art. 147 ZZD (Bulgarian Law of Obligations and Contracts), a guarantor remains liable only if the creditor brings proceedings against the debtor within six months of the principal obligation becoming due. In the present case, guarantors satisfied the debt - except in one instance - after this period had expired, and subsequently assigned their claims to APS Beta Bulgaria EOD or Agentsia za kontrol na prosrocheni zadalzhenia AD, which then sought repayment from the consumers through order for payment proceedings. In these circumstances, the referring court (Sofia District Court) submitted questions for a preliminary ruling.

Reasserting jurisprudence constante

Some of the questions addressed in APS Beta Bulgaria have already been the subject of established case law in recent years. For example, in response to the fifth question, the Court of Justice reaffirmed that the classification of a commercial practice as unfair, following Pereničová and Perenič, constitutes just one aspect of the broader context within which standard terms are to be assessed for unfairness, under Art. 4(1) and Art. 3(1) UCTD (paras 75-77).

Similarly, the Court reaffirmed that national courts are under a duty to examine the unfairness of standard terms ex officio. However, a mere doubt as to their unfairness is not sufficient to support a finding to that effect. In this regard, the Court confirmed that where national courts are empowered to take investigative measures of their own motion to supplement the case file - provided that the audi alteram partem principle is respected - this power extends to order-for-payment proceedings. This position is consistent with case law beginning with Banco Español de Crédito, in which the ex officio obligations of national courts were recognised in the context of such proceedings. By confirming the relevance of the audi alteram partem principle, the Court also underscored that the parties to the proceedings are expected to assume an active role. In this respect, the Court reaffirmed its jurisprudence constante (e.g., ERSTE Bank Hungary, para 62; Sziber, paras 46-47; Lintner, paras 38–39, 44).

In answering the first question, the Court also reaffirmed its case law established in Kásler (paras 37-38), Matei (para 50) and Andriciuc (para 34), holding that the concept of the main subject matter of the contract under Art. 4(2) UCTD constitutes an autonomous concept of EU law (paras 49–52). The Court once again defined the main subject matter as the essential obligations of the contract, which do not appear to correspond directly to the concept of essentialia negotii under national law, particularly as there is no express reference to the law of the Member States (para 51). The issue arose as to whether the contract of guarantee might be excluded from unfairness control on the basis that it constitutes a separate agreement, whereas a guarantee would merely qualify as an ancillary term under the credit agreement. The Court held that the credit and guarantee agreements should be regarded as forming a single contractual relationship, especially where the costs of the guarantee are payable within the credit instalments. Accordingly, the assessment of whether a contract term constitutes a core term must be undertaken with reference to the essential nature of the obligation within the overall contractual relationship, rather than by isolating the contract of guarantee (paras 55–59). In so doing, the Court opened the way for the assessment of unfairness of the contract of guarantee, without classing it as falling under the scope of the exclusion under Art. 4(2) UCTD (paras 53–54).

A similar observation may be made regarding the Court’s answer to the eighth question. It confirmed that the concept of the total cost of credit to the consumer is defined broadly to include all costs which the consumer is required to pay in connection with the credit agreement. In this regard, it follows that the costs linked to a contract of guarantee - where the conclusion of such a contract is imposed on the consumer by a term in the credit agreement and contributes to the overall consumer’s debt - fall within both the concept of total cost and that of the APRC (paras 86-93). Notably, the Court did not engage with the concept of ‘total cost of the credit’ as an autonomous concept of EU law, although it might have done so, particularly given its approach in Soho Group (paras 39, 51). 

In a similar vein, the Court reasserted its case law on the proportionality of sanctions as developed in Profi Credit Bulgaria, namely that a failure to provide a correct APRC, accurately reflecting the extent of the consumer’s liability, may under national law (that is, it is proportional) result in the creditor being deprived of entitlement to interest and charges connected to the credit agreement. This raises the further question whether any failure to indicate the APRC - irrespective of its seriousness - may justify the same sanction, or whether certain inaccuracies, such as minor discrepancies (as under French law, see Art. R313-1 II Al. 4 C. con.) or errors in favour of the consumer (e.g., where the APRC indicated in the contract is higher than the actual one), could still be regarded as proportionate grounds for forfeiture of interests and charges linked to the credit agreement.

Some Doubts Regarding Interpretative Restraint

Although the Court has reaffirmed its jurisprudence constante, certain aspects of the judgment may nevertheless be viewed critically - particularly in relation to the Court’s interpretative restraint. 

For instance, in addressing the second and third referred questions, the Court focused on three types of contract terms that may be considered unfair under the Annex to the UCTD. These include terms (Point 1, (i), (j), (m) of the Annex I UCTD), which: first, irrevocably bind the consumer to provisions of which they had no real opportunity to become aware before the conclusion of the contract; secondly, allow the seller or supplier unilaterally to alter the terms of the contract without a valid reason specified therein; and thirdly, grant the seller or supplier the exclusive right to determine whether the goods or services supplied conform with the contract, or to interpret the terms of the contract unilaterally. As the Court observed, a contract term by which the consumer undertakes to conclude a contract of guarantee with a guarantor chosen by the lender - without being aware, at the time of concluding the credit agreement, of the guarantor’s identity or the terms of the guarantee - does not correspond to any of the contract terms listed in the Annex to the UCTD (paras 62–63). Nonetheless, this does not preclude its classification as unfair. Such a term must instead be assessed under the general unfairness criteria laid down in Art. 3(1) UCTD (para 63). What remains unclear, however, is why the Court refrained from offering more specific guidance on how such terms might be assessed for unfairness, or under what circumstances they could justifiably be found unfair under the criteria of Art. 3(1) UCTD. While it is true that this assessment ultimately falls to national courts, the Court has previously provided tailored guidance on the application of Art. 3(1) UCTD to specific types of terms - such as accelerated repayment clauses in Banco Primus (paras 65–67) or, more recently, in Všeobecná úverová banka (para 86). Its failure to do so in this case may be understood as a form of interpretative restraint, even though such guidance would have been of practical value to other Bulgarian courts in assessing similar clauses in related proceedings, including those not subject to the current reference in the preliminary ruling procedure. It remains to be seen whether more detailed guidance will be offered in the still pending analogous case Financial Bulgaria (C-426/23). 

A comparable concern arises from the Court’s answer to the fourth question on unfair commercial practices. Although the referring court sought only a classification of the practice as aggressive under Annex I to the UCPD (paras 66–71), the Court might have offered broader guidance on whether such a practice could also fall within the general concept of unfairness under this directive. Although such clarification - comparable to the guidance the Court has been providing under the UCTD - would have been of practical relevance for Bulgarian courts, this approach remains arguable, since the Court was bound by the narrowly framed question referred by the national court concerning Annex I of the UCPD. 

A further issue arises from the Court’s response to the sixth and seventh referred questions. The Court held that it could not assess the compatibility of national case law with, inter alia, Art. 5 and 7 UCTD, as both provisions concern contract terms rather than the legal effects that arise from the judicial application of national legislation (para 79). Although this distinction is formally correct, the Court could have engaged with the broader context or, at least, acknowledged that the UCPD framework may be relevant in such circumstances - particularly concerning time limitations. Where guarantors - potentially subsidiaries of the lender and within one overreaching contractual framework - satisfy the debt after the applicable national limitation period has expired, such conduct may effectively circumvent debtor-protective rules. This raises serious concerns whether such commercial practices could not be viewed as unfair commercial practices under the UCPD framework.

Of particular interest is that the Court did not classify the credit agreement and the contract of guarantee as a linked credit agreement within the meaning of Art. 3(n) CCD (2008), thereby excluding the application of Art. 15 of that directive (paras 80–85). While this narrow conclusion is justified on the basis of a literal interpretation of the referral, the Court could have addressed Art. 17 CCD, a provision invoked by the Commission during the proceedings (AG, para 25). A more thorough engagement with this provision would have offered clearer guidance to national courts in cases involving analogous contractual arrangements where one agreement, such as a guarantee, is intrinsically linked to another, such as a credit agreement.

Where Now?

The underlying doubts surrounding the Court’s interpretative restraint in this case may be understood through the lens of judicial dialogue. As AG Collins observed in his Opinion (AG, paras 24–25), it is the responsibility of national courts to formulate the questions referred to the Court of Justice, and the Court limits itself to answering the questions so posed. Nonetheless, the Court’s reliance on a strictly literal reading of both the referred questions and the applicable legal provisions - without situating them in their broader factual and regulatory context - reflects a form of interpretative restraint or even escapism. This approach appears designed to preserve the formal boundaries of judicial dialogue, but it comes at the expense of substantive guidance for national courts. In other words, such interpretative restraint appears to balance judicial dialogue over the need to provide legal certainty for consumers - and, by extension, over the achievement of a high level of consumer protection. This is particularly problematic when it comes to clarifying general clauses or engaging with provisions such as Art. 17 CCD (2008). The issue is especially pressing considering growing concerns about informal debt collection practices, which have recently been the subject of detailed academic analysis (see Stănescu 2025, in OA). What emerges from this case is a broader and more pressing question: does APS Beta Bulgaria reflect an isolated instance of an overemphasis on judicial dialogue, or does it signal a broader shift toward interpretative restraint - or even escapism - in the Court’s ever-evolving case law?

Interpretation favours air passengers - CJEU in Cymdek (C-20/24)

In Cymdek case (C-20/24) Polish court asked the CJEU to further interpret provisions of Regulation 261/2004 on air passenger rights regarding proof of travel (reservation) and the concept of traveling 'free of charge'. The case was decided on March 6 and the CJEU interpreted relevant provisions of the Regulation in a passenger-friendly manner. 

Facts and legal questions

In this case, a company CCC financed package tours for a group of passengers. CCC booked this package tour with a tour operator BBB. It included a flight between Spain and Poland, which was delayed by over 22 hours (operating carrier: AAA). Two questions raised in the dispute followed from passengers not being involved with making the reservation nor paying for it. Article 3 of the Regulation 261/2004 defines the scope of its application and requires that passengers 'have a confirmed reservation on the flight concerned'. This requires passengers to have a ticket or 'other proof' that the air carrier or tour operator accepted and registered the reservation, pursuant to Article 2(g). Further, Article 3(3) excludes from the scope of application such passengers who travel free of charge or at a reduced fare. As proof of their reservation passengers were presenting their boarding passes and the first question answered by the CJEU asked whether this was sufficient as 'other proof'. Second question addressed the issue of passengers traveling 'free of charge' if they did not pay for their flight, but the tour operator and the air carrier were remunerated nonetheless.

Boarding pass as proof of a reservation

The CJEU considers a boarding pass as proof of a reservation, as it includes ticket or reservation number and confers on passengers 'entitlement to transport', authorising them to take the flight (paras 23-24). It also relies on the fact that as the operating air carrier admitted these passengers on board via check-in and allowed them to take the flight, they had to have had a confirmed reservation for that flight (para 29). The boarding pass can then prove the existence of a reservation, even if it does not contain all information normally expected from it, e.g. arrival time (para 25). 

Free of charge air travel only if made free by the operating air carrier

The most common interpretation of the exclusion from Article 3(3) Regulation 261/2004 involved air carriers offering free (or at a reduced fare not available to the public) flights to passengers, outside the frequent flyer programme benefits (paras 40-41). The CJEU confirms in this judgment that it is only the operating air carrier's decision to facilitate free (or at a reduced fare) travel to passengers that would prevent passengers from claiming protection from Regulation 261/2004 (para 44). The fact that the tour operator in this case remunerated the operating air carrier according to market conditions further signifies that the flight was not 'free of charge' (para 48). It is also irrelevant whether passengers paid themselves to the tour operator, or whether, as in this case, the package tour was paid by a third party (para 49). The burden of proof that a passenger travelled free of charge rests on the air carrier, as they will need to prove their case is excluded from the applicability of Regulation 261/2004 (para 51).

The importance of this judgment is twofold. First, it clarifies the language of the previous case Azurair and Others (C-146/20, C-188/20, C-196/20 and C-270/20), which implied that a proof of a reservation is only perceived as such if it contains a lot of flight-related information. This specific interpretation would have made it relatively easy for the airlines to avoid providing passengers with a 'confirmed reservation' by not providing some of this information in written form to passengers, or providing it in various documents. It is also good to have a confirmation of the notion 'free of charge' and its narrow applicability. We may have expected that it was irrelevant whether passengers paid for their flight themselves, as they also did not require a contractual relationship with the operating air carrier. However, it is good to read that passengers will not lose their protection if they travel on a discounted rate basis due to arrangements e.g. between their employers and tour operators, provided it is not the operating air carrier that offers this (not publicly available) deal.

Do you really need my title? The CJEU says no – a win for consumer privacy in case C‑394/23

(Source: Freepik)

Have you ever been asked about your title while purchasing something online? It’s a common practice, but most of us (consumers) don’t realise that it raises concerns from a data protection perspective, especially when the seller requires us to provide this information and does not allow us to skip the form field and place the order without disclosing our gender. This practice was challenged by the French association Mousse in proceedings against the French Data Protection Authority (Commission nationale de l’informatique et des libertés, CNIL) and the French railway operator SNCF Connect, eventually resulting in a preliminary ruling by the Court of Justice of the EU (Case C‑394/23).

The facts

SNCF Connect sells rail travel documents such as train tickets and discount cards via its website and mobile applications. When purchasing these products, customers are required to indicate their title by selecting either Monsieur (Mr) or Madame (Ms). This requirement raised Mousse’s concerns about its compliance with the General Data Protection Regulation (GDPR).

The association filed a complaint with CNIL, arguing that the collection of titles lacked a valid legal basis under Article 6(1) GDPR, violated the data minimisation principle under Article 5(1c), and failed to meet the transparency and information obligations set out in Article 13 GDPR. The CNIL rejected the complaint, concluding that collecting titles was justified as necessary for the performance of a contract under Article 6(1b) and aligned with accepted norms of personalised communication (paras. 13–15). Mousse appealed the decision to the French Conseil d’État, which referred several preliminary questions to the CJ.

The ruling

The Court of Justice essentially said “no” to this kind of data processing. It did not declare that the processing of title-related personal data is categorically prohibited under the GDPR, but stressed that in the specific context of this case, it “does not appear to be either objectively indispensable or essential to enable the proper performance of the contract” concluded with the consumer (para. 39).

Here are the key takeaways from the judgment:

1. The Court focused its analysis on Articles 6(1b) and 6(1f) GDPR, which establish when data processing is lawful. Article 6(1b) allows processing when it is “necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract”, while Article 6(1f) permits it if it serves a legitimate interest of a controller or a third party, provided that interest is not overridden by the data subject’s fundamental rights and freedoms.

The Court made it clear that when relying on contractual necessity under Article 6(1b), the controller must show that the processing is “objectively indispensable for a purpose that is integral to the contractual obligation intended for the data subject” (para. 33). In other words, the controller must demonstrate that the processing “must be essential for the proper performance of the contract concluded between the controller and the data subject and, therefore, that there are no workable, less intrusive alternatives” (para. 34). Applying this to the case at hand, the Court rejected the CNIL’s and SNCF’s claim that collecting customers’ titles is necessary for personalised commercial communication, and that such communication is an essential part of the contract. According to the Court:

“Commercial communication may constitute a purpose forming an integral part of the contractual service concerned, since the provision of such a rail transport service involves, in principle, communicating with the customer in order, inter alia, to send him or her a travel document by electronic means, to inform him or her of any changes affecting the corresponding journey, and to allow exchanges with the after-sales service. That communication may require adherence to accepted practices and may include, in particular, forms of addressing a customer, in order to show that the undertaking concerned respects its customer and thereby to safeguard that undertaking’s brand image. However, it appears that such communication does not necessarily have to be personalised based on the gender identity of the customer concerned” (paras. 37–38).

In short, personalising content is not necessary if the same service can be provided in a standard, non-personalised way. The controller could instead use more privacy-friendly alternatives, such as generic and inclusive forms of address that do not rely on the consumer’s assumed gender identity (para. 40).

2. Furthermore, the systematic and generalized processing of consumers’ titles cannot be justified by the mere fact that some of them use the services of night trains, even if it is necessary to adapt transport services for night trains, which have carriages reserved for persons with the same gender identity, and to assist passengers with disabilities. In the Court's view, it does not justify the collection of titles of all customers, including those who travel during the daytime or who do not have disabilities. Such a practice is disproportionate and contrary to the principle of data minimization (para. 42).

3. As it regards the ‘legitimate purposes’ prerequisite, the Court found that personalised commercial communication can be achieved by using customers’ first and last names alone, since requiring their title or gender identity is not strictly necessary, particularly in light of the data minimisation principle (para. 55). Moreover, it’s important to note that Article 6(1f) GDPR does not allow “common practices or social conventions” to justify the necessity of processing personal data (para. 56).

4. Finally, the fact that data subjects may object to the processing under Article 21 GDPR is irrelevant in this context. According to the Court, this opt-out mechanism should not be taken into the account while assessing whether the original data collection was lawful (para. 70). To put it simply, controllers cannot justify collecting unnecessary personal data by simply allowing individuals to object afterward. While the right to object is an important safeguard, it does not give controllers a free pass to collect data first and handle objections later.

Our comment

The judgment has a direct impact on the practices of certain data controllers who, without a valid legal basis, collect excessive data concerning consumers’ titles and gender identity, where such information is not necessary for the purposes of processing. The CJ ruling serves as a clear reminder that personal data must be processed in accordance with the principle of data minimisation, meaning that only data strictly necessary to achieve the intended purpose should be collected and used.

Importantly, the Court did not declare that the collection of such data is absolutely prohibited under the GDPR. Rather, it emphasised that lawfulness depends on the specific context. For example – although not stated explicitly, this can be inferred from the reasoning – a controller may process such data on the basis of the data subject’s consent. In that case, a form used by the consumer to conclude a contract could include an optional field allowing the individual to indicate a preferred form of address. Crucially, this field would not be mandatory: if the consumer wished to provide that information, they could do so; if not, they could simply skip it without consequence. 

PS. In the context of this judgment, it is also worth drawing attention to another recent CJEU decision (case C‑247/23) which likewise concerned the processing of gender identity data. In that case, the Court reaffirmed that one of the fundamental duties of a data controller is to ensure the accuracy of the personal data processed. If a data subject exercises its right to rectification, the controller should not impose disproportionate administrative burdens that unjustifiably hinder the exercise of that right. The case involved a request to update the gender information in a public register maintained by a Hungarian authority. The individual, registered as female, sought to have the record amended to reflect his male gender, submitting medical documentation to support the request. The authority, however, demanded proof of surgical gender reassignment – a requirement the CJ found excessive and incompatible with the essence of fundamental rights, including the rights to personal integrity and respect for private life.

"Young promise" or just a consumer? CJEU in C-365/23 [Arce]

Today the Court of Justice has delivered a truly remarkable judgment that I am eager to share with readers of this blog (available here, even though for now only in French and Latvian). The decision concerned a contract concluded between "A", a professional in the business of offering career development services for sports talents, and "C", then 17 and represented by his parents to the ends of concluding the contract. 

According to the contract, concluded on 14 January 2009 for a period of fifteen (15) years, A would offer a wide range of services in support of C's development as - hopefully, professional - basketball player. In return, C would pay A 10% of all the net revenue he was to earn for the duration of the contract, plus VAT, as long as such income would pass the threshold of 1500 euros per month. 

A bit over a decade into the contract, A sued C for failing to fulfil their obligations under the contract, with a claim amounting to over 1,6 million euro - 10% of what the player had earned from sport clubs until that point in time. [We are not sure how this was calculated, but A would likely know since accounting services were included in the contract]

Latvian tribunals, which were competent to adjudicate on the dispute, were not keen to grant A's claim: the demand was rejected in first and second instance on ground that the term was unfair under Latvian consumer law; A took the case to the Latvian Supreme Court, which in turn raised *twelve* preliminary questions for the CJEU. Luckily, not all questions have to be answered and not were equally challenging, so the analysis here will be limited to the most salient points. All have to be seen to pertain to the Unfair Terms Directive - from the definition of consumer under that directive to the scope of minimum harmonisation. 

Consumer contract?

First: was the "career development services" contract a consumer contract? The referring court noticed (see para 31) that across different jurisdictions different stances were noticeable concerning similar cases, with a court in France having concluded that a young talent concluding a comparable contract had to be considered a consumer, while an earlier German case has excluded the applicability of consumer law to the type of services at hand. 

The Court of Justice answered that, to the extent that the minor at hand was not a professional player at the time of concluding the contract, they should be considered consumers - and hence enjoy consumer protection. The fact that the player later engaged in professional sports does not change this conclusion as the party's quality as consumer must be, for the purposes of unfair terms rules, ascertained only with reference to the moment that the contract was concluded. The fact that the contract concerned the player's "eventual professional career" doesn't change this conclusion either. 

While the Court recalls its previous decision in Costea, other decisions concerning the notion of consumer when "bordering" professional activities, such as Gruber, were not discussed. This means, however, that it is difficult to immediately assess the reach of the judgment: will this "generous" take also cover adults who engage comparable services in the hope to undertake a professional activity that they have not engaged in yet, or is this interpretation limited to the case of minors who have not engaged yet in the relevant professional activity? AG Rantos' reasoning in his opinion, as reported on in Joasia Luzak's overview of last month, seems to suggest a broad applicability (which may go against the common assumptions in several member states!).

"Price" term exempted from control?

Having established that the Directive was applicable to the contract under consideration, the CJEU had to consider whether the term was actually subject to the unfairness test. This was contentious since article 4(2) of the Directive famously dictates that the test shall not concern "the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration". A claimed that the term should then not be subject to judicial control. The CJEU agreed as to the applicability of the exception - in line with the second part of article 4(2) then, the national courts would only be able to assess the term's unfairness if the term did not comply with the requirement of transparency - being "in clear and intelligible language". 

In this respect, the CJEU seemed to suggest that the term may not comply with the transparency requirement: it is however for the national court to ascertain whether the term was sufficiently clear that the consumer could understand its impact on their legal and economic position. In this respect, the Court considers that both the information provided to the consumer (and their representatives!) at the time of concluding the contract and, interestingly, the term spelling out what services A would provide against the agreed remuneration should be seen as relevant to the assessment. Furthermore, since Latvia had not yet explicitly implemented the exemption of article 4(2) by January 2009, it is possible that on the basis of minimum harmonisation the term would still be open to scrutiny even if transparent. The Court then proceeds to answer questions that would be relevant in case the term can be subject to control. 

Is the term unfair? 

As we know, it is for national courts to decide whether a specific term is unfair; the CJEU, however, can provide parameters to support the national courts, which they have done in a number of cases. In this specific case, the Court adopts a reasoning which is in some way new - at least to the extent that it seems to establish a hierarchy or order of reasoning between the two prongs of the unfairness test - that the term causes a significant imbalance contrary to good faith. While these two elements (good faith and significant imbalance) are often considered as hardly distinguishable, the Court here suggests that one should "at first" consider the possible violation of the principle of good faith, and "second" ascertain the eventual existence of a significant imbalance. This is not unheard of, as the references in the decisions show, but it is usually not regarded as more than a style clause. 

In assessing whether the term is unfair, thus, the CJEU asserts, the national court should consider on the one hand whether the professional, dealing in honest and reasonable way, could expect the consumer to accept the term in individual negotiations, while on the other hand considering national default rules to ascertain whether the clause created a significant imbalance in the rights and obligations of the parties (compared to their rights in case nothing had been agreed). In doing so, and this is genuinely new, it can consider "fair market practices" around the pricing of similar services at the time of the contract's conclusion, or "the obligations that a reasonably informed consumer could expect to incur" (see para 84). The Court takes these additional criteria from the AG's opinion and it will be interesting so see whether this reference to market practices will prove to be incidental (it is after all a rather niche subject!) or take hold. 

Fundamental rights?

Finally, the Latvian Supreme Court wanted to know whether fundamental rights should be considered in assessing the term - in particular the right to property (art 17 EUCFR) and the requirement for public authorities and private entities to pay the highest attention to the "best interest of the child" when taking decisions concerning minors (art 24 EUCFR). In this sense, the CJEU first observes that the Charter is applicable (see para 99) to the questions at issue since they fall within the MS's implementation of EU law (on this, the Court has been holding that this applicability is in no way affected by minimum harmonisation, which we won't be again questioning now). Setting aside with no further ado the relevance of article 17, the Court focusses on article 24: indeed, national courts should take it into account when making decisions concerning the unfairness of terms included in contracts concluded by (at the time of conclusion) minors. This is in line with fairly established idea on the indirect horizontal application of fundamental rights. At the same time, the CJEU seems cautious to avoid over-protective applications: consideration of the best interest of the child, the Court explain, does not exclude that the national court could consider the fact that the parents, concluding the contract on the child's behalf, were familiar with the environment of professional sports, or the fact that C was already 17 at the moment of concluding the contract (see para 103). 

Hence to conclude: C was a consumer; the clause is in principle exempted but may be open to control either because lacking transparency or because Latvian law did not incorporate the exemption at the time the contract was concluded; if the national court does assess the clause, they should consider national default rules, good market practices of the time as well as the best interest of the child, but also consider that supposedly competent parents acted as representatives. Also, not discussed here because not at all surprising, if the term would be found unfair the national court would not be able to proceed to mitigation of the due sum - which opens to the usual drama around consequences since the contract would then likely be invalid. 

What will happen once the case is back with the Latvian courts then? Readers who have access to Latvian sources - do reach out to let me know! This case has all the ingredients of an instant classic.

Information duties in consumer credit: the CJEU in C-677/23

At the end of January, the CJEU delivered another judgment interpreting Directive 2008/48 on Consumer Credit. In C-677/23 A. B., F. B. v Slovenská sporitel’ňa a.s. consumers alleged that the credit contract did not contain all the necessary elements provided by the Directive. The dispute thus involved the interpretation of Article 10 (2), which provided the mandatory content for the credit contract. Two subparagraphs came under scrutiny in this case.

Duration of the credit agreement

One problem was that the credit contract did not provide for its entire duration. However, it did lay out the number of instalments to be paid. Under Article 10(2)(c), the credit agreement shall specify clearly and concisely the duration of the credit agreement. The question for the CJEU, therefore, was whether it is sufficient to comply with this provision by indicating the number of instalments. 

 

The CJEU concluded that since the duration of a credit agreement is closely linked to the performance of the parties' contractual obligations “the indication of the duration of the credit agreement, in accordance with Article 10(2)(c) of Directive 2008/48, does not necessarily have to be made through a formal indication of the precise date on which that agreement begins and ends, provided that its terms enable the consumer to determine that duration without difficulty and with certainty” (para. 43).

Assumptions used in the calculation of the APRC

The second question considered by the CJEU was about interpretation of Article 10(2)(g) according to which the credit agreement shall specify in a clear and concise manner “the [APRC] and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used to calculate that rate shall be mentioned." The wording in the contract was the following: "The credit has been granted immediately, in full; the borrower shall fulfil his or her obligations under the terms and conditions and within the time limits set out in the credit agreement; the interest rate shall apply until the end of the credit relationship". Another part of the contract provided that “the agreement shall be concluded for a … fixed period until the full settlement of all relationships arising in connection with the credit granted". The consumers considered these unclear. 

 

The CJEU considered the purpose of the provision and asserted that it is aimed at making the consumers aware of their rights and duties (para. 58). Moreover, reference to the assumptions must enable consumers to verify whether the APRC has been calculated correctly and, if not, to assert their rights, particularly the right of withdrawal, the period of which is extended in case of breach of Article 10 (para 59). Reference to the assumptions should also enable consumers to exercise their other rights provided by national legislation, including sanctions for non-compliance, which in this case, under the applicable Slovakian law, meant that the credit is interest-free (para 59). 

 

The CJEU concluded that assumptions used for the calculation of APRC are "vitally important" for consumers (para. 61), which meant that the "the assumptions used to calculate the APRC must be expressly mentioned in the credit agreement and that it is not sufficient in that regard that the consumer may himself or herself identify them by examining the terms of that agreement" (para. 64).

Concluding thoughts 

 

This judgment reinforced the importance of consumer information for the enforcement of consumer rights. Whilst it is questionable to what extent assumptions in the calculation of APRC are understandable for individual average consumers with no legal and financial background even if they are expressed in clear and precise language, the CJEU rightly held that if information is scattered around the contract and not expressed clearly and straightforwardly it is even more difficult to consumers to comprehend the effect and consequence of the terms of their contract. This judgment is, therefore, a further push towards clearly structured and worded contracts that at least give consumers a chance to understand their rights and duties and enforce their rights accordingly.

The judgment continues to be relevant under the new Directive 2023/2225 on Consumer Credit, which contains the scrutinised provisions in Article 21(1)(d) and (g).