Official Journal of the European Union

C 180/19

(Case C-243/08) (1)

(Directive 93/13/EEC - Unfair terms in consumer contracts - Legal effects of an unfair term - Power of and obligation on the national court to examine of its own motion the unfairness of a term conferring jurisdiction - Criteria for assessment)

2009/C 180/32

Language of the case: Hungarian

Referring court

Parties to the main proceedings

Applicant: Pannon GSM Zrt

Defendant: Erzsébet Sustikné Győrfi

Re:

Reference for a preliminary ruling — Budaörsi Városi Bíróság — Interpretation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Clause conferring jurisdiction on a court in the territorial jurisdiction of which the seller or supplier has his principal place of business — Power of the national court to examine of its own motion, and in the context of the examination of its own jurisdiction, whether the clause conferring jurisdiction is unfair — Criteria to be applied in determining whether the clause is unfair

Operative part of the judgment

1.Article 6(1) of Council Directive 93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

2.The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.

3.It is for the national court to determine whether a contractual term, such as that which is the subject-matter of the dispute in the main proceedings, satisfies the criteria to be categorised as unfair within the meaning of Article 3(1) of Directive 93/13. In so doing, the national court must take account of the fact that a term, contained in a contract concluded between a consumer and a seller or supplier, which has been included without being individually negotiated and which confers exclusive jurisdiction on the court in the territorial jurisdiction of which the seller or supplier has his principal place of business may be considered to be unfair.

(1) OJ C 247, 27.9.2008.