Case summary

Deciding Body
Court of Appeal Amsterdam
Gerechtshof Amsterdam
Netherlands
National case details
Date of decision: 29.07.14
Registration ID: n. 200.055.552/01
Instance: Appellate on fact and law
Area of law
Consumer protection
Unfair terms

Preliminary ruling
Judgement of the CJEU 30 May 2013, Case C-488/11 Judgment of the Court (First Chamber), 30 May 2013 D. F. A. B. and K. d. M. G. v J. BV, Case C-488/11

Identification of the case

National law sources
  • Articles 6:94 and 6:233 of the Dutch Civil Code (Burgerlijk Wetboek)
EU law sources
  • Directive 93/13/EEC on unfair terms in consumer contracts

Summary of the case

Facts of the case

The case concerned a claim for the payment of rent arrears, contractual interest and penalties by Mr A. B. and Ms D. M. G. to J. BV under a residential tenancy agreement. The question arose whether the standard terms regarding the contractual penalties could be deemed to be unfair in light of Directive 93/13/EEC. A specific question concerned the inclusion of tenancy agreements in the scope of the Directive, given that the Dutch official text of the Directive referred to contracts concluded between a ‘seller’ (verkoper) and consumer only.

Reasoning (legal principles applied)

The CJEU held that Directive 93/13/EEC must be interpreted as applying to a tenant agreement like this, if this agreement is subject to statutory or regulatory provisions set out by national law, which is a matter for the national court to ascertain. Furthermore, the national court is not allowed to reduce the amount of the penalty imposed on the consumer by that clause, but requires it to exclude the application of that clause in its entirety with regard to the consumer.

 

In accordance with this judgment, the Court of Appeal in Amsterdam found that the contractual penalty clause fell within the scope of the Directive and should be considered unfair in light of Article 1(5) of the Annex to the Directive, which indicates that terms may be unfair that ‘have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’. The Court of Appeal considers that the contractual penalty is unfair, since it stipulates a fixed interest rate that is considerably higher than statutory interest and market interest in the Netherlands (judgment of 21 January 2014 and final judgment of 29 July 2014). Finally, the Court awards the claim for the rent that is still due plus statutory interest, and rejects all other claims.

Implementation of preliminary ruling

The Court of Appeal’s final judgment is in accordance with the CJEU’s ruling in A. B.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU and National court (preliminary reference)
Cited CJEU
  • CJEU C-
Dialogue techniques

Preliminary reference, consistent interpretation, proportionality.

Purposes of using judicial dialogue

The Court of Appeal aimed at clarifying the applicability of Directive 93/13/EEC to other types of contracts than sales contracts, i.e. interpreting national law in line with EU law. Furthermore, the Court wished to clarify whether it was allowed to mitigate a contractual penalty (cf. Article 6:94 BW) or had to disapply the contract clause and, thus, sought to resolve a conflict of norms.

Additional notes on the decision

Impact on legislation/policy

CJEU A. B. is cited in, inter alia:

Supreme Court:

 

Courts of Appeal:

 

Courts of first instance:

Impact on national case law

The Court of Appeal’s final judgment is in accordance with the CJEU’s ruling in A. B.

There were no further references to CJEU case law (or the Charter), other than the ones already mentioned in the Court of Appeal’s first judgment of 13 September 2011.

External links
  1. Home
  2. Netherlands, Court of Appeal Amsterdam, 29 July 2014 n. 200.055.552/01