A quite recent decision of the Court of Justice of the European Union – First Chamber (Decision 28th of June – 21st March 2013 – Case C-92/11), stated that Article 1(2) of Directive 93/13 applies to provisions in general terms and conditions, incorporated into contracts concluded between a supplier and a consumer, which reproduce a rule of national law applicable to another category of contracts.
The Court of Justice of the European Union was requested for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany), concerning the interpretation of Articles 1(2), 3 and 5 of and point 1(j) and the second indent of point 2(b) of the annex to Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 3(3) of and points (b) and (c) of Annex A to Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC.
The questions were risen in the proceeding between RWE Vertrieb AG (“RWE”) and the consumer association Verbraucherzentrale Nordrhein-Westfalen e.V. concerning the use by RWE of allegedly unfair terms in consumer contracts. Basically, RWE concluded contracts with consumers for the supply of natural gas, on the basis of freedom of contract (special contracts). Under national law, gas suppliers are obliged to conclude contracts with consumers in which a standard tariff is applied (standard tariff contracts), but they are allowed to vary gas prices unilaterally without stating the grounds, conditions or scope of the variation, while ensuring, however, that customers would be informed of the variation and would, if appropriate, be free to terminate the contract.
As to RWE’s prospective, the contested term, which forms part of the general terms and conditions applicable to the customers of gas industry, cannot be reviewed for unfairness. In fact, the term are related to the German discipline applicable to standard tariff contracts.
The Federal Court of Justice brought before the Court of Justice questions related to the interpretation of the rules of the Directive 93/13/ECC enacted to protect consumers against unfair and/or non-transparent standard contractual terms. Specifically, it was asked for a clarification about the purpose of the exclusion from review for unfairness of standard terms which merely reproduce mandatory statutory or regulatory provisions.
According to the Court of Justice’s reasoning, as stated in Article 1(2) of Directive 93/13, contractual terms which reflect mandatory statutory or regulatory provisions are not subject to the provisions of the directive. Moreover, contractual terms are excluded from the scope of the directive if they reflect provisions of national legislation governing a certain category of contracts, not only if the contract concluded by the parties is within that category but also with respect to other contracts to which that legislation applies in accordance with a provision of national law. That reasoning does not, however, apply to terms in a contract that differs from those referred above. In fact, it is said that exclusion of the application of the rules of Directive 93/13 is justified by the fact that it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts. That reasoning does not, however, apply to terms in a contract that differs from those referred to in above. In such a situation the national legislature has decided to exclude that contract from the scope of the rules laid down for other categories of contracts. An intention of the parties to extend the application of those rules to a different contract cannot be equated to the establishment by the national legislature of a balance between all the rights and obligations of the parties to the contract. Moreover, if it were permitted to exclude the application of Directive 93/13 to contractual terms merely because they reproduce national statutory or regulatory provisions that do not apply to the contract concluded by the parties, or refer to such provisions, that would call into question the system of consumer protection established by that directive.