Case summary

Deciding Body
Supreme Court
Hoge Raad
National case details
Date of decision: 12.02.16
Instance: Cassation (review)
Case status: Pending
Area of law
Consumer protection
Unfair terms

Safeguards for access to justice
Right to a fair trial, Right to legal assistance
Relevant principles applied
In judicial dialogue
Judgement of the CJEU (First Chamber), 4 June 2015, Case C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV

Identification of the case

Fundamental rights involved
  • Right to an effective remedy and to a fair trial (art. 47 CFREU)
National law sources
  • Art. 7:61(2) BW
  • Art. 7A:1576(2) BW: An agreement for a purchase of sale in installments is not valid until the parties have determined the price to be paid by the buyer.
EU law sources
  • Directive 2008/48/EC (Consumer Credit Directive)
  • Directive 93/13/EC

Summary of the case

Facts of the case

[A] concluded a contract with KPN for two mobile phone contracts, which included two mobile phones. [A] failed to pay several invoices, which led to KPN terminating the agreement and assigning the claim to Lindorff. Lindorff brought an action to Rechtbank Den Haag, claiming that [A] was liable for the unpaid invoices, as well as for a final lump sum payment of € 1.254,09 to pay off the contract, which includes both a call component, as well as a device component. The defendant did not show up to the hearing, which led the Court to ask several preliminary questions to the Supreme Court. According to art. 7A:1576(2) BW, the agreement for a purchase of sale in instalments is not valid until the parties have agreed the price to be paid by the buyer. In this case, KPN and [A] had not agreed a separate price for the telephones. The preliminary question set out by the court was whether the judge was under a duty ex officio to determine whether the consumer contract can be enforced.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

Answering of preliminary questions by the Supreme Court. The case will be resumed in Rechtbank Den Haag.

Reasoning (legal principles applied)

The Court applies the CJEU’s reasoning in the Faber case and applies it to Title 2A of Book 7 of the Dutch Civil Code, which is part of the implementation of Directive 2008/48/EC, considering whether a judge is under an ex officio duty to determine whether the consumer contract is valid. The Supreme Court determines that, in accordance with art. 7A:1576 BW, a purchase agreement in instalments is not valid until the purchase price for the mobile phone is determined separately in the contract. This requirement is not met by an all-in price. Thus, in order to determine whether [A] has recourse to a remedy under art. 7A:1576 BW, the Court must determine whether there is an ex officio obligation on the judge to apply the national provisions which implement Directive 2008/48/EC.

The Court notes that art. 22(2) of Directive 2008/48/EC obliges Member States to ensure that consumers cannot waive their rights under the Directive. This has been enforced into national law through art. 7:61(2)(e) BW, which allows the consumer to nullify the contract if the purchase price of the mobile phone is not determined separately. The Court cites the CJEU’s reasoning in Rampion that, in order to guarantee an adequate level of consumer protection, Directive 2008/48/EC allows judges to apply the national provision implementing the Directive, even if the consumer has not invoked the protection.

Furthermore, the Court considers that the requirement that judges apply consumer protection rules ex officio stems from the principle of effectiveness, as established in the CJEU’s decision in Faber. The Court follows the CJEU’s reasoning in this case that the requirement for the judge to apply the law ex officio is justified because the consumer is in a weaker negotiating position than the seller and because there is a significant risk that the consumer will not invoke his rights as a consumer out of ignorance. Thus, if the Court finds that the agreement in question is contrary to consumer protection legislation, it must attach appropriate measures, ex officio if necessary, to ensure an adequate level of protection.

Role of the Charter and role of the general principles on enforcement

Relation to scope of the Charter

Article 47 CFREU: The right to an effective remedy and a fair trial. This case is related to article 47 CFREU, as it ensures that consumers have an effective remedy before a court of law, which is guaranteed by protecting the consumers right through acting ex officio. This is important in guaranteeing an effective remedy, as consumers may be ignorant of their rights.

Safeguards for access to justice
  • Right to a fair trial
  • Right to legal assistance
Reference to national provisions

Art. 17(1) of the Dutch Constitution: Every person has the right to a fair trial within a reasonable time in front of an independent and impartial judge.

Relevant principles applied
  • Effectiveness
Principle of effectiveness

The principle of effectiveness requires the Court to protect consumers rights stemming from EU Directives ex officio, if necessary. This requirement stems from the weak bargaining position of the consumer vis a vis the seller and because there is a significant risk that the consumer will be ignorant of his rights.

Elements of judicial dialogue

Vertical dialogue type
  • Dialogue between high court - lower instance court at national level
Cited CJEU
  • CJEU C-497/13, Faber
Dialogue techniques

Conform interpretation with EU law as interpreted by the CJEU.

Purposes of using judicial dialogue

To determine whether a judge should ex officio investigate whether consumer rights are breached.

Expected effects of judicial dialogue

Judicial Reform.

Case author

Silvester van Kordelaar, University of Groningen

Published by Chiara Patera on 29 January 2020