Pravna literatura

Unfair Contract Terms Directive, Article 3

The author analyses the judgement of the Court of Justice of EU, Dexia Nederland BV v XXX (C-229/19), Z (C-289/19), of 27 January 2021. In two consumer disputes between Dexia Nederland BV as the predecessor of Dexia and the consumers XXX and Z, Dexia prematurely withdrew from the lease agreements by purchasing shares due to late payments. Dexia demanded repayment of the unpaid portion of the principal, interest and compensation for non-performance of the contract. In the case of repayable lease agreements with the purchase of shares, the consumer borrowed funds from the bank, with which the bank, as a lessor, purchased shares for the account and for the benefit of the consumer. The bank remained the owner of the shares until the loan amount was repaid, but dividends were paid to the lessee. At the end of the contract, the shares were sold, and the loan was repaid with the purchase price from the sold shares, and depending on the share prices at the time, the consumer could incur debt or profit.

The Court of Justice of EU has emphasised that the interpretation of the concept of an unfair condition (Article 3 (1) of Directive 93/13 / EEC) must comply with the rules of national law. Significant imbalances must be assessed in the light of economic inequalities between the parties, considering the legal position of the parties, the possible restriction of the consumer's rights as a weaker party or the imposition of additional obligations. Furthermore, the assessment of the unfairness of the contractual condition must be assessed on the date of conclusion of the contract. However, a significant imbalance between the parties can only become apparent during the performance of the contract. In the case law, the CJEU has already ruled that the following should be considered: date of conclusion of the contract, the circumstances surrounding the conclusion of the contract, whether the contractual condition, determined in favour of the tenderer, has caused an imbalance in the rights and obligations of the parties from the day of concluding the contract. The author concludes that share leases were not void in their entirety and may remain valid without an unfair condition.