CJEU, 1st chamber, April 3, 2014, No C-342/13

THE COURT (First Chamber),

1 The request for a preliminary ruling concerns the interpretation of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) ('the Directive').

2 The request has been made in proceedings between (i) Ms Sebestyén and (ii) Zsolt Csaba Kovári, OTP Bank, OTP Faktoring Követeléskezelo Zrt and Raiffeisen Bank Zrt relating to her application for annulment of unfair terms contained in a contract concluded with Raiffeisen Bank Zrt for the grant of a mortgage loan.

Legal context

EU law

3 The 12th recital in the preamble to the Directive states:

'... whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive ...'

4 Article 3 of the Directive provides:

'1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre­formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

3. The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.'

5 Article 4(1) of the Directive provides:

'Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.'

6 Article 5 of the Directive provides:

'In the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.'

7 Article 6(1) of the Directive is worded as follows:

'Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.'

8 The Annex to the Directive lists the terms referred to in Article 3(3). Point 1(q) of that annex is worded as follows:

'Terms which have the object or effect of:

...

(q) excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions ...'

Hungarian law

9 Article 209 of Law No IV of 1959 on the Civil Code (Polgári törvénykönyvrol szóló 1959. évi IV. törvény), in its version applicable to the main proceedings, is worded as follows:

'1. Standard contractual terms and terms in a consumer contract which have not been individually negotiated are to be regarded as unfair if, contrary to the requirements of good faith, they establish the parties' rights and obligations arising under the contract unilaterally and unjustifiably, to the detriment of the contracting party which did not stipulate those terms.

2. In assessing the unfairness of a contractual term, all the circumstances attending the conclusion of the contract which led the parties to conclude it must be considered, as well as the nature of the service agreed and the relationship of the term at issue with other terms of the contract or of other contracts.

3. A special provision may identify the clauses of consumer contracts which are of an unfair nature or must be regarded as unfair, unless proved otherwise.

4. Provisions relating to unfair contractual clauses shall not be applicable to contractual stipulations which define the main subject-matter or to those which determine the equivalence between the service provided and the consideration given in return.

5. A contractual term cannot be regarded as unfair if it has been laid down by a rule of law or has been drafted in conformity with a rule of law.'

10 Article 3(1) of Law No LXXI of 1994 on arbitration provides that a dispute may be resolved by arbitration instead of by judicial remedy if:

'(a) at least one of the parties is professionally engaged in business activities and the legal dispute arises out of or in connection with this activity; and

(b) the parties may dispose freely of the subject-matter of the proceedings; and

(c) arbitration was stipulated in an arbitration agreement.'

11 Article 5(1) of that law defines an arbitration agreement as an agreement between parties to submit to an arbitration tribunal any dispute which has arisen or may arise in connection with a particular contractual or non-contractual relationship.

12 In accordance with Article 8(1) of Law No LXXI of 1994, the court in which an action is filed in a matter that is the subject of an arbitration agreement must, with the exception of actions filed in accordance with Article 54 of that law, dismiss the action as inadmissible without consulting the parties or must, upon the request of either party, close the case, unless it declares the arbitration agreement null and void, inoperative or inadmissible.

13 According to Article 54 of Law No LXXI of 1994, decisions of an arbitration tribunal cannot be appealed. Only on the grounds specified in Article 55 of that law may an application be made to a court to set aside an award.

14 According to Article 1(1) of Government Decree No 18/1999 on unfair clauses in consumer contracts (A fogyasztóval kötött szerzodésben tisztességtelennek minosülo feltételekrol szóló 18/1999. (II. 5.) Kormányrendelet), terms of a consumer loan contract are regarded as unfair if they:

'...

(i) ... exclude or limit the remedies available to the consumer to enforce his rights under the law or terms agreed between the parties, except where such remedies are replaced by a procedure for the resolution of disputes established by law;

...'

The dispute in the main proceedings and the questions referred for a preliminary ruling

15 On 15 October 2008, Ms Sebestyén concluded a mortgage loan contract and a mortgage agreement with Raiffeisen Bank Zrt. In them, the parties agreed that, should a dispute arise over the contract or the agreement, exclusive jurisdiction over the dispute would be vested in a chamber of three arbitrators from the Pénz- és Tokepiaci Állandó Választottbíróság (Permanent Arbitration Tribunal of the Financial and Capital Market), save in certain cases specifically provided for.

16 In those documents the parties also provided for the exclusive jurisdiction of the Pesti Központi Kerületi Bíróság (Central Court of the District of Pest) or of the Fovárosi Bíróság (Budapest Municipal Court), depending on the amount in dispute, for orders for payment procedures and the possibility of an ordinary procedure occurring in the event of opposition by the debtor.

17 As is apparent from the order for reference, prior to the signing of the mortgage loan contract and the mortgage agreement, the bank provided Ms Sebestyén with information on the respective differences between the rules of procedure applicable to the arbitration tribunals and to the ordinary courts. In addition, when the contract and the agreement were being signed, the bank specifically drew Ms Sebestyén's attention to the fact that the arbitration procedure comprised merely one instance and that appeals could not be brought, and informed her that the costs incurred in commencing and conducting an arbitration procedure tended to be higher than those of ordinary proceedings.

18 However, maintaining that the arbitration clauses contained in the contract and the agreement had put Raiffeisen Bank Zrt in an advantageous position and had unjustifiably limited her constitutional right to institute legal proceedings, Ms Sebestyén asked the Szombathelyi Törvényszék (Szombathelyi Local Court) to declare those clauses void.

19 In those circumstances, the Szombathelyi Törvényszék decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

'(1) Is it appropriate to consider to be unfair, on the basis of Article 3(1) [of Directive 93/13], a contractual clause which makes disputes regarding a loan contract entered into between a consumer and a bank subject to the exclusive jurisdiction of a chamber made up of three arbitrators of the Pénz- és Tokepiaci Állandó Választottbíróság?

(2) Is it appropriate to consider, on the basis of Article 3(1) [of Directive 93/13], that a contractual clause which makes disputes concerning a loan contract entered into between a consumer and a bank subject to the exclusive jurisdiction of a chamber made up of three arbitrators of the Pénz- és Tokepiaci Állandó Választottbíróság, save in the exceptional cases provided for in the contract, is unfair, regardless of the fact that the contract contains general information concerning differences between the procedure governed by Law No LXXI of 1994 on arbitration and ordinary legal proceedings?'

Consideration of the questions referred for a preliminary ruling

20 Pursuant to Article 99 of its Rules of Procedure, where the answer to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, after hearing the Advocate General, give its decision by reasoned order.

21 That provision should be applied in the present case.

22 By its questions, which should be considered together, the referring court is asking, in essence, whether Article 3(1) of the Directive must be interpreted as meaning that a clause contained in a mortgage loan contract concluded between a bank and a consumer, vesting exclusive jurisdiction in a permanent arbitration tribunal, against whose decisions there is no judicial remedy under national law, to hear all disputes arising out of that contract must be regarded as unfair, under that provision, despite the fact that, before the signing of the contract, the consumer received general information on the differences between the arbitration procedure and ordinary legal proceedings.

23 As a preliminary point, it should be noted that, as is clear from Article 3(1) of the Directive, only the terms of a contract concluded between a seller or supplier and a consumer which have not been individually negotiated fall within the scope of the directive (Case C-226/12 Constructora Principado EU:C:2014:10, paragraph 18).

24 In that regard, Article 3(2) of the Directive provides that a term is always to be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract (order in Case C-76/10 Pohotovost EU:C:2010:685, paragraph 57).

25 It is also important to make clear that, according to the Court's settled case-law, the Court's jurisdiction in that regard extends to the interpretation of the concept of 'unfair term' used in Article 3(1) of Directive 93/13 and in the Annex thereto, and to the criteria which the national court may or must apply when examining a contractual term in the light of the provisions of that directive, but that it is for the national court to determine, in the light of those criteria, whether a particular contractual term is actually unfair in the circumstances of the case. It follows that the Court must limit itself to providing the referring court with guidance which the latter must take into account in order to assess whether the term at issue is unfair (Case C-415/11 Aziz EU:C:2013:164, paragraph 66 and the case-law cited).

26 However, it should be noted that in referring to concepts of good faith and significant imbalance between the rights and obligations of the parties, Article 3(1) of the Directive merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated (see Case C-237/02 Freiburger Kommunalbauten EU:C:2004:209, paragraph 19, and Case C-243/08 Pannon GSM EU:C:2009:350, paragraph 37).

27 In that regard, the Court has held that, in order to ascertain whether a term causes a 'significant imbalance' in the parties' rights and obligations arising under the contract, to the detriment of the consumer, it is necessary in particular to consider what rules of national law would apply in the absence of an agreement by the parties in that respect. Such a comparative analysis will enable the national court to evaluate whether and, as the case may be, to what extent, the contract places the consumer in a legal situation less favourable than that provided for by the national law in force. Similarly, it is appropriate, to that end, to carry out an assessment of the legal situation of that consumer having regard to the means at his disposal, under national legislation, to prevent continued use of unfair terms (see Aziz EU:C:2013:164, paragraph 68).

28 With regard to the question of the circumstances in which such an imbalance arises 'contrary to the requirement of good faith', it should be stated that, having regard to the 16th recital in the preamble to the Directive, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations (see Aziz EU:C:2013:164, paragraph 69).

29 In addition, pursuant to Article 4(1) of the Directive, the unfairness of a contractual term must be assessed taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all of the circumstances attending its conclusion (Pannon GSM EU:C:2009:350, paragraph 39, and Case C-137/08 VB Pénzügyi Lízing EU:C:2010:659, paragraph 42). It therefore follows that the consequences of the term under the law applicable to the contract must also be taken into account. This requires that consideration be given to national law (see Freiburger Kommunalbauten EU:C:2004:209, paragraph 21, and order in Pohotovost EU:C:2010:685, paragraph 59).

30 The Szombathelyi Törvényszék should assess the unfairness of the arbitration clause at issue in the main proceedings in the light of those criteria.

31 In that respect, it is worth noting that the Annex to the Directive, to which Article 3(3) of that directive refers, contains only an indicative and non-exhaustive list of terms which may be regarded as unfair (see Case C-472/10 Invitel EU:C:2012:242, paragraph 25 and the case-law cited), expressly listing, in point 1(q) of the Annex, terms that have the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration that is not covered by legal provisions.

32 While the content of the Annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless, as the Court has already held, an essential element on which the competent court may base its assessment as to the unfair nature of that term (Invitel EU:C:2012:242, paragraph 26).

33 In addition, as regards the question of whether a term such as that at issue in the main proceedings could be regarded as unfair despite the fact that the consumer received, before the conclusion of the contract, general information on the differences between the arbitration procedure and ordinary legal proceedings, it should be noted that the Court has already held, in the context of Article 5 of Directive 93/13, that pre-contractual information relating to the contractual terms and the consequences of concluding the contract is of fundamental importance to the consumer. It is, in particular, on the basis of that information that the consumer decides whether he wishes to be bound by the conditions drafted in advance by the seller or supplier (Constructora Principado EU:C:2014:10, paragraph 25 and the case-law cited).

34 However, even assuming that the general information the consumer receives before concluding a contract satisfies the requirement under Article 5 that it be plain and intelligible, that fact alone cannot rule out the unfairness of a clause such as that at issue in the main proceedings.

35 If the national court concerned reaches the conclusion that the clause at issue in the main proceedings must be regarded as unfair within the meaning of the Directive, it should be recalled that, pursuant to Article 6(1) of that directive, it is for that court to draw the appropriate conclusions under national law in order to ensure that the consumer is not bound by that clause (see, to that effect, Case C-40/08 Asturcom Telecomunicaciones EU:C:2009:615, paragraph 59).

36 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 3(1) and (3) of Directive 93/13 and point 1(q) of the Annex to that directive must be interpreted as meaning that it is for the national court concerned to determine whether a clause contained in a mortgage loan contract concluded between a bank and a consumer - vesting exclusive jurisdiction in a permanent arbitration tribunal, against whose decisions there is no judicial remedy under national law, to hear all disputes arising out of that contract - must, having regard to all of the circumstances surrounding the conclusion of that contract, be regarded as unfair under those provisions. In the context of its assessment, the national court must, in particular:

- verify whether the clause at issue has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy; and

- take account of the fact that the communication to the consumer, before the conclusion of the contract at issue, of general information on the differences between the arbitration procedure and ordinary legal proceedings cannot alone make it possible to rule out the unfairness of that clause.

If the clause is held to be unfair, it is for that court to draw the appropriate conclusions under national law in order to ensure that the consumer is not bound by that clause.

Costs

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (First Chamber) hereby rules:

Article 3(1) and (3) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and point 1(q) of the Annex to that directive, must be interpreted as meaning that it is for the national court concerned to determine whether a clause contained in a mortgage loan contract concluded between a bank and a consumer - vesting exclusive jurisdiction in a permanent arbitration tribunal, against whose decisions there is no judicial remedy under national law, to hear all disputes arising out of that contract - must, having regard to all of the circumstances surrounding the conclusion of that contract, be regarded as unfair under those provisions. In the context of its assessment, the national court must, in particular:

- verify whether the clause at issue has the object or effect of excluding or hindering the consumer's right to take legal action or exercise any other legal remedy; and

- take account of the fact that the communication to the consumer, before the conclusion of the contract at issue, of general information on the differences between the arbitration procedure and ordinary legal proceedings cannot alone rule out the unfairness of that clause.

If the clause is held to be unfair, it is for that court to draw the appropriate conclusions under national law in order to ensure that the consumer is not bound by that clause.