Brussels, 18/06/2012 (Agence Europe) - Where it finds that a clause in a contract concluded between a seller or supplier and a consumer is unfair, a national court cannot revise the content of that clause and is required solely to set it aside. Thus says the ruling of the Court of Justice of 14 June in response to questions put by the Audiencia Provincial de Barcelona (Spain), which sought guidance on the compatibility with Directive 93/13/EEC on unfair terms in consumer contracts of a Spanish law which: - does not authorise the courts before which an application for an order for payment had been brought to hold, of their own motion, that unfair terms contained in a contract concluded between a seller or supplier and a consumer are void; - and allows courts not only to set aside but also to revise the content of unfair clauses.
On the first point, the Court rules that this law could render ineffective the protection offered consumers by the directive. Indeed, this protection is based on the assumption that, in consumer contracts, consumers are at a disadvantage vis-à-vis sellers and suppliers in terms of powers of negotiation and level of information. It is to compensate this imbalance that a national court, before which an application for an order for payment has been brought, is required to assess of its own motion whether clauses contained in a contract concluded between a seller or supplier and a consumer are unfair, where it has available to it the legal and factual elements necessary for that task. Further, certain factors related to the payment procedure - such as the particularly short period provided for such an objection, the costs which legal proceedings would entail and the amount of such costs in relation to the amount of the disputed debt, lack of knowledge of their rights, the incomplete nature of the information available to them on account of the limited content of the application for the order for payment submitted by the sellers or suppliers - are liable to discourage consumers from submitting an objection and may deprive consumers of the protection intended by the directive. On the second point, the Court notes that, according to the directive: - an unfair clause included in a contract concluded between a seller or supplier and a consumer does not bind the latter; - that the contract containing such a clause remains binding for the parties on the same terms if it is capable of continuing in existence without that unfair clause. On this basis, the power granted to the national court to revise the content of unfair terms in consumer contracts would provide less effective protection of consumers than that resulting from non-application of those clauses. Sellers or suppliers would remain tempted to use those terms in the knowledge that, even if they were declared invalid, the contract could, nevertheless, be modified by the court in such a way as to safeguard their interests. The Court concludes that, where they find that there is an unfair clause, national courts are required solely to exclude the application of such a clause in order that it does not produce binding effects with regard to the consumer, without having the power to revise the content of that clause. If it is capable of continuing in existence without the unfair clause, the contract will still remain binding on both parties. (FG/transl.rt)