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by Marco Sposini
Laywer, Milan Bar Association
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The Court of Justice on Articles 3(1), 7(1) and 6(1) of Directive 93/13/EEC on unfair terms in consumer contracts
23 November 2023
The Court of Justice of the European Union, by judgment ECLI:EU:C:2023:911, dated 23 November 2023, in Case C-321/22 – in the context of three sets of proceedings between, respectively, ZL, KU and KM and Provident Polska S.A. concerning the validity of various terms in consumer credit agreements that ZL, KU and KM concluded with Provident Polska or another company which is its legal predecessor – ruled that:
1. Article 3(1) of Directive 93/13/EEC on unfair terms in consumer contracts must be interpreted as meaning that, provided that the examination of the possible unfairness of a term relating to the non-interest costs of a loan agreement concluded between a seller or supplier and a consumer is not precluded by Article 4(2) of that directive, read in conjunction with Article 8 thereof, such a term may be held to be unfair as a result of the fact that that term provides for the payment by the consumer of charges or a commission fee in an amount that is manifestly disproportionate to the service provided in exchange.
2. Article 7(1) of Directive 93/13, read in the light of the principle of effectiveness, must be interpreted as precluding a national law which, as interpreted in the case-law, requires, in order for a consumer’s action for a declaration that an unfair term in a contract concluded with a seller or supplier is unenforceable to be upheld, proof of an interest in bringing proceedings, where that interest is regarded as being absent where the consumer may bring an action for the recovery of sums unduly paid, or where the consumer may raise that unenforceability as part of his or her defence to a counter-claim brought against him or her by that seller or supplier on the basis of that term.
3. Article 6(1) of Directive 93/13, read in the light of the principle of effectiveness, proportionality and legal certainty, must be interpreted as not precluding a declaration that a loan agreement concluded between a seller or supplier and a consumer is null and void where it is found that only the term of that agreement setting out the specific arrangements for payment of the sums due by periodic instalments is unfair and that that agreement cannot continue in existence without that term. Nevertheless, where a term which contains a stipulation that is separable from the other stipulations of that term and capable of being the subject of an individual examination of its unfairness, the removal of which would make it possible to restore real balance between the parties without affecting the substance of the contract concerned, that provision, read in the light of those principles, does not mean that that term, or even that contract, should be declared invalid in their entirety.
The text is available here