Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Effects of a finding that a term is unfair – Mortgage loan agreement denominated in a foreign currency – Determination of the exchange rate between currencies – Novation agreement – Deterrent effect – Obligations of the national court – Article 6(1), and Article 7(1).
Outcome of the case:
On those grounds, the Court (Seventh Chamber) hereby rules:
33) In those circumstances, the Sąd Okręgowy w Gdańsku XV Wydział Cywilny (Regional Court, Gdańsk, XV Civil Division, Poland) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
91) By its fifth question, the referring court asks, in essence, whether Article 6(1) of Directive 93/13, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), must be interpreted as meaning that it is for the national court, on finding that a term of a contract concluded by a seller or supplier with a consumer is unfair, to inform the consumer of the legal consequences that the annulment of such a contract may entail, irrespective of whether the consumer is represented by a professional representative.
92) In that regard, it follows from settled case-law that it is for the national court, which has found a term to be unfair and must draw the legal conclusions therefrom, to comply with the requirements of effective judicial protection of an individual’s rights under EU law, as guaranteed by Article 47 of the Charter. Among those requirements is the principle of audi alteram partem, as part of the rights of defence and which is binding on that court, in particular when it decides a dispute on a ground that it has identified of its own motion (judgment of 21 February 2013, Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 29 and the case-law cited).
99) In the light of all the foregoing considerations, the answer to the fifth question is that Article 6(1) of Directive 93/13, read in conjunction with Article 47 of the Charter of must be interpreted as meaning that it is for the national court, finding that a term in a contract concluded between a seller or supplier and a consumer is unfair, to inform the consumer, in the context of the national procedural rules, after both parties have been heard, of the legal consequences which annulment of the contract may entail, irrespective of whether the consumer is represented by a professional representative.