Who covers for insolvent package tour organisers? States, not air carriers - CJEU in HQ and Others (C-163/18)

Today the CJEU issued a judgment in the case HQ and Others (C-163/18), which we previously discussed as the Aegean Airlines case (Avoiding double claims at all cost...). The CJEU followed the argumentation presented by AG Saugmandsgaard Øe and decided that as long as passengers have a right to claim a reimbursement of their air tickets' costs from a package tour organiser pursuant to the national rules implementing Package Travel Directive, they are prohibited from claiming such costs from an air carrier, as well. Irrespective of whether they are actually able to obtain actual compensation. 

This is a very literal interpretation of Article 8(2) Regulation 261/2004 (para. 31), which aims to prevent double compensation claims from being raised by passengers (para. 34). However, this interpretation does not help consumers in a situation like in the given case, where the package tour organiser is insolvent and the consumer is left without a recourse. The CJEU indicates that where the package tour organiser did not ensure sufficient insolvency protection pursuant to Article 7 Package Travel Directive, this provision has been improperly implemented and applied in a given Member State (paras. 41-42) and the passenger may claim his damages from the Member State under State liability rules (para. 43). The burden is placed, therefore, on passengers to continue with their search for justice.

CJEU in Kirschstein: the scope of UCPD is broad, but not infinite

Earlier today the Court of Justice delivered its judgment in a very interesting case C-393/17 Kirschstein. As reported in our earlier post on the opinion of Advocate-General, the case concerned the application of the Unfair Commercial Practices and the Services Directives in the sector of higher education. In the judgment issued today the Court agreed with the Advocate-General that the national requirement, according to which only accredited higher education establishments may award certain degrees, does not contradict the analysed directives. The part of Court's reasoning on the UCPD, however, clearly deviates from the arguments of AG Bobek. 

Facts of the case

The defendants were running a higher education institution which organised study programmes, upon the completion of which master's degrees were awarded, despite the lack of an accreditation. The Public Prosecution Service considered this practice to be in breach of Belgian law and initiated legal proceedings. The defendants argued that national legislation criminalising the act of conferring ‘master’s’ degrees, without having obtained the authorisation required for that purpose, was contrary to Directives 2005/29 and 2006/123.

Unfair Commercial Practices Directive

The questions referred by the national court are framed very generally and it is not entirely clear which part of the UCPD is considered to potentially preclude the contested national rules. The most likely argument seems to relate to the UCPD's black list. Indeed, from Plus Warenhandelsgesellschaft onwards, the Court of Justice has consistently found that national prohibitions, which pursue the objectives relating to consumer protection and are not included in the Annex I to the Directive, do not comply with the UCPD.  

The Court, however, did not even get to that stage and focused on the UCPD scope. It recalled the definition of a commercial practice, covering any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product (including services) to consumers (Article 2(d)). However, unlike Advocate-General, who focused on the question whether the provision of higher education qualifies as a service or not, the Court directed its attention towards the aspects of service provision, which fall within the scope of the UCPD. More specifically, according to the Court, a distinction must be made between commercial practices which are closely linked to a commercial transaction involving a product (promotion and sale or supply) and the product (service) itself (para. 42). As a result, a national rule which aims to determine which operators are authorised to provide a service in a commercial transaction, without directly regulating the practices which that operator may subsequently implement to promote or "dispose of the sales of that service", does not qualify as a commercial practice within the meaning of Directive 2005/29 (para. 45). By "disposing of the sales of services" the Court appears to mean "putting into practice the marketing of a service" (following the Dutch version), i.e. the act of supplying the service as such. From this it follows that the UCPD does not apply to national legislation at issue in the main proceedings.

Services Directive

The second part of the judgment, one involving the interpretation of Services Directive, appears to be more aligned with the Advocate-General's opinion (even though again no references are made to the opinion). Similarly to the AG, the Court found that educational services in question can be regarded as neither non-economic services of general interest (Article 2(2)(a)), nor activities which are connected with the exercise of official authority (Article 2(2)(i)), and thus cannot be excluded en bloc from the scope of Directive 2006/123. It then went on to assess whether the authorisation scheme established by national law was compatible with requirements set out in Articles 9 and 10 of Services Directive. According to the Court the analysed framework did not seem to have a discriminatory nature, was justified by an overriding reason relating to the public interest (ensuring a high level of higher education and protecting the recipients of services) and pursued that objective with appropriate means, thus complied with Article 9 of the Directive. As regards Article 10, the Court established that the preliminary reference did not contain sufficient information about the conditions of the authorisation scheme and left the relevant assessment to the national court. 

Concluding thought

Case C-393/17 Kirschstein shows that services in higher education sector are not, by their very nature, excluded from the scope of either UCPD, or Services Directive. However, the judgment delivered today also underlines that not all national rules restricting the provisions of services must be analysed under UCPD. When it comes to the conditions imposed on the service as such - here: determination of the operators authorised to provide such a service - it is Services Directive that provides the relevant benchmark, not the UCPD. In making that distinction the Court put a limit to the overly expansive interpretation of the consequences of the UCPD's black list and brought the focus of the discussion back where it belongs.

Recent developments in online content moderation

The discussion about the role of platform operators in content moderation is perhaps as old as online intermediaries themselves. Since the very beginning it involved a delicate balance between conflicting considerations: eg how to protect the freedom of expression, the freedom to conduct a business and the right to an effective remedy while ensuring that intellectual property and personality rights are safeguarded and harmful content does not thrive. The solution established by Articles 14 and 15 of the E-Commerce Directive has continuously been put into test (for the latest installment in the CJEU case law series, see C-18/18 Glawischnig-Piesczek). The approach of choice of the outgoing European Commission has been to keep the legal framework intact for the time being, while pursuing a set of non-legislative initiatives such as recommendations and codes of conduct (eg on hate speech and online disinformation). 

Screenshot of Facebook website

This did not hinder national stakeholders from taking further action. In particular, in 2017 the German lawmaker came up with a new law - the so-called Network Enforcement Act (NetzDG), which imposed a legal obligation on the operators of social media platforms to take down illegal content within the set time limits and report the number of complaints. The act came into force in January 2018 and it has just shown its teeth for the first time: with a 2 million euro fine imposed on Facebook. Interestingly, the decision of the Federal Office of Justice (Bundesamt für Justiz) does not concern the failure of the platform operator to remove illegal content, but rather its alleged non-compliance with transparency duties. According to the German enforcer, the option for making a complaint under NetzDG was harder to find on Facebook than an option for complaining that a post violated the platform’s "community standards". Time will tell whether the decision holds in the appeal proceedings.

Meanwhile, allegations against insufficient blocking and reporting are not the only problems faced by the online platforms these days. Two ongoing legal proceedings in Poland offer an illustrative counterexample. In 2016 a case was brought against Facebook by the president of an association Reduta Dobrego Imienia (Polish League against Defamation) against an alleged overblocking of right-wing content. More recently, Facebook was yet again sued by a Polish NGO whose content was blocked by the platform operator, this time from the opposite side of the social-political spectrum. The dispute in SIN v. Facebook concerns the blocking of a site providing reliable information about the use of psychoactive substances; not to support their consumption, but as part of a harm reduction strategy. The cases are still pending, the big news so far is the in both cases Polish courts recognized their jurisdiction on the basis of Article 7(2) Regulation 1215/2012.

When CJEU case law travels from Spain to Slovenia: C-407/18 Addiko Bank

What happens when a Slovenian court asks the EU Court of Justice a question to which the answer should already clearly follow from previous case law on Directive 93/13? Then the Advocate General might not give an Opinion, but in Case C-407/18 Kuhar v Addiko Bank the Court provides a concise overview of its case law pertaining to, in particular, Spain and Poland, and explains what this means for Slovenia. Thus, the Court seems to understand what the referring court was looking for: back-up for its interpretation of Slovenian procedural law.

To readers of this blog, the case will look familiar: it reminds us of e.g. Banesto, Aziz, Profi Credit Polska and PKO Bank Polski. The CJEU also refers to Banco Popular Español, ERSTE Bank Hungary and Finanmadrid. What these cases have in common with Addiko Bank, is that they all concern the (limited) role of the court in expedited debt-collection procedures, i.e. mortgage enforcement or order-for-payment proceedings. The court only performs a formalities check and cannot assess the merits of the claim. It is the debtor who must initiate a contentious debate by challenging the claim or opposing the enforcement, and it is the (consumer-)debtor who must apply for a declaration of nullity of allegedly unfair contract terms and/or the loan agreement. The court cannot review unfair terms ex officio, and the enforcement is not automatically suspended. As the CJEU recalls, there is a real risk that consumers are unaware of their rights, especially if they do not receive legal aid and lack the financial means for legal representation. In Slovenia, an additional problem is that (consumer-)debtors must provide security for the payment of the debt when they apply for suspension of the enforcement. For a summary of the restrictive procedural conditions at issue, see para 50 of the judgment.

In paras 53-63, the CJEU elaborates why the constellation of procedural rules runs counter to the effectiveness of the Unfair Contract Terms Directive. The link with the Directive is that the mortgage loan agreement at hand appeared to contain an unfair foreign currency clause. In the enforcement proceedings, however, the emphasis was on the debtors' duty to meet their payment obligations rather than the question whether the enforcement was based on unfair terms. Whilst notaries can have a "preventive" role in respect of unfair terms in mortgage loan agreements and notarial deeds, the right of consumers to effective judicial protection must be observed by giving them the opportunity to exercise their rights under reasonable procedural conditions, in particular in respect to time-limits and costs. The mere existence of a means of recourse is not sufficient, as the Slovenian rules at issue show. If there is no ex officio control of unfair terms in the enforcement proceedings, and unfair terms control only takes place at a later stage, consumers will only be protected ex post. Financial compensation will not prevent the loss of their family home.

The Court does not only provide a synthesis of its case law on effective judicial protection in the context of the UCTD; it also discusses Slovenian procedural law in detail. Apparently, the Spanish and Polish cases (still) do not give enough guidance as to what level of procedural protection is required in light of the Directive. What happens in Spain, stays in Spain, and is not 'translated' to other jurisdictions - certainly not Slovenia, and as Padraic Kenna has pointed out, not in Ireland either. The CJEU has repeatedly urged national courts to apply their national laws in such a way as to ensure the full effect of the Directive (reiterated in paras 65-66 of the judgment), but Addiko Bank demonstrates this may not happen without CJEU back-up. The CJEU's case law must 'travel' from Spain and Poland to Slovenia first. Hopefully, the judgment will signal once again that effective judicial protection requires a genuine opportunity for consumers to exercise their rights, not a mere formality; and that the CJEU's case law on unfair terms control (ex officio) in mortgage enforcement proceedings transcends specific EU Member States.

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).