Dexia Nederland (Consumer protection - Assessment of the unfairness of contractual terms - Judgment) [2021] EUECJ C-229/19 (27 January 2021)

Dexia Nederland (Consumer protection - Assessment of the unfairness of contractual terms - Judgment) [2021] EUECJ C-229/19 (27 January 2021)

A term in a risk-weighted contract fixing in advance the seller’s advantage in the event of premature termination is unfair if, at the time of contract conclusion, it may create a significant imbalance between parties’ rights and obligations, even if the imbalance materializes only under certain circumstances. If such a term is declared void, the seller cannot claim statutory compensation under supplementary national law where the contract can continue without the unfair term.

Citation
[2021] EUECJ C-229/19
Parties
Seller/supplier: Dexia Nederland BV; Consumer: XXX; Consumer: Z
Jurisdiction
European Union
Judgment Date
27 January 2021
Procedural Posture
Preliminary Ruling / Court of Justice of the European Union, Post Referral From National Courts
Outcome
Preliminary ruling issued; terms fixing advance advantage for seller in event of premature termination may be unfair; statutory compensation under national law not claimable if contract continues without unfair term.
Legal Topics
Unfair Contract Terms, Statutory Compensation, Premature Contract Termination, Supplementary National Law
Consumer Protection Contract Law European Union Law Unfair Contract Terms Statutory Compensation Premature Contract Termination Supplementary National Law

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Parties

Dexia Nederland BV

Seller/supplier

XXX

Consumer

Z

Consumer

Procedural Posture

Preliminary Ruling / Court of Justice of the European Union, Post Referral From National Courts

Legal Issues

  1. 1 Whether a contractual term fixing in advance the seller's advantage in the event of premature termination is unfair under Directive 93/13
  2. 2 Whether a seller can claim statutory compensation under national law after a term is declared void for unfairness

Ratio Decidendi

A term in a risk-weighted contract fixing in advance the seller’s advantage in the event of premature termination is unfair if, at the time of contract conclusion, it may create a significant imbalance between parties’ rights and obligations, even if the imbalance materializes only under certain circumstances. If such a term is declared void, the seller cannot claim statutory compensation under supplementary national law where the contract can continue without the unfair term.

Court Disposition

Preliminary ruling issued; terms fixing advance advantage for seller in event of premature termination may be unfair; statutory compensation under national law not claimable if contract continues without unfair term.

Orders

  • National courts must assess whether terms fixing advance advantage for seller are unfair under Directive 93/13.
  • If term is declared void, seller cannot claim statutory compensation under supplementary national law unless contract voidance would penalize consumer.