31.8.2020

Official Journal of the European Union

C 287/25

(Case C-853/19) (<span class="oj-super oj-note-tag">1</span>)

(Reference for a preliminary ruling - Article 53(2) and Article 99 of the Rules of Procedure of the Court of Justice - Consumer protection - Directive 2005/29/EC - Unfair business-to-consumer commercial practices - Articles 8 and 9 - Aggressive commercial practices - Directive 93/13/EEC - Unfair terms in consumer contracts - Term which has been individually negotiated - Powers of the national court)

(2020/C 287/37)

Language of the case: Slovak

Referring court

Parties to the main proceedings

Applicant: IM

Defendant: Sting Reality s.r.o.

Operative part of the order

1.Articles 8 and 9 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council must be interpreted as meaning that the classification of a commercial practice as aggressive, within the meaning of those provisions, requires a concrete and specific assessment, in the light of the criteria set out in those provisions, of all the circumstances characterising that practice. Where a contract has been concluded by an elderly person suffering from a serious disability and having a limited income which does not enable that person to repay the debts that he or she has accumulated, the fact that the contract thus concluded had the effect of enabling a national consumer protection provision to be circumvented is an indication that the trader concerned intended to knowingly take advantage of the particular gravity of the situation of that person, in order to influence his or her decision, this being a matter for the referring court to assess.

2.Article 3 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that the national court hearing an application for a review of the unfair nature of the terms of a contract concluded between a consumer and a trader is required, where the latter refuses — despite a request to that effect addressed to him or her — to communicate to that court similar contracts which he or she has concluded with other consumers, to give effect to the national procedural rules available to it in order to assess whether the terms of such a contract have been individually negotiated.

3.The third question referred by the Okresný súd Poprad (District Court, Poprad, Slovakia) is manifestly inadmissible.

(<span class="oj-super">1</span>) OJ C 36, 3.2.2020.