Case summary

Deciding Body
Supreme Court of the Netherlands
Hoge Raad der Nederlanden
National case details
Date of decision: 26.02.16
Registration ID: 15/01425
Instance: Cassation (review)
Area of law
Consumer protection
Unfair terms

Relevant principles applied
Equivalence, Effectiveness
In judicial dialogue
30 May 2013, Case C-488/11 Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani 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. 6:94 Dutch Civil Code (DCC) (moderation and addition; equity)
  • Art. 6:104 DCC (compensation; surrender of profits)
  • Art. 6:233 DCC (Voidable stipulations from the applicable standard terms and conditions)
EU law sources
  • Directive 93/13/EEC

Summary of the case

Facts of the case

By written agreement ‘the foundation’ rented a house to claimant. In this agreement a term was included under which claimant was obligated to pay 125 euros fine a day, in case she would violate the terms agreed to in the rental agreement. The term also stated that the fine was due without notice and did not affect her other obligation to pay the rent and possible other rights to compensation for the renter. One of these terms stated that it was explicitly not allowed to sublet the house. Subsequently ‘the foundation’ found out she was in fact subletting the house. To this ‘the foundation’ responded by demanding payment of 55.000 euros and 10.000 euros. On appeal, claimants’ grounds of appeal do not include a ground that doubts the judgement that the term is not an unfair term, but only complains that the court in first instance did not moderate the penalty. The court of appeal rejects the request to moderate the penalty, stating that the ground of appeal did not challenge the fairness of the term, which obligates the court of appeal to not take it into consideration.   

Type of enforcement
  • Civil judicial enforcement
Reasoning (legal principles applied)

The Supreme Court first states that the terms of the rental agreement fall within the scope of Directive 93/13/EEC. Referring to Asbeek/Brusse (C-488/11), it stresses that rental agreements between professional landlords and tenants are also governed by the Directive. In earlier Dutch case law (Heesakker/Voets; ECLI:NL:HR:2016:340) the Supreme Court took into consideration that according to the case law of the Court of Justice of the EU the provisions of the Directive are on equal footing with national provisions of public policy. This means that courts of appeal should ex officio assess if a term is unfair in the light of Directive 93/13/EEC, even if this means it should reason beyond what is offered by the grounds of appeal. In this case, a judge may go beyond the grounds of appeal, as long as he does not go beyond the ambit of the legal dispute. This means that, unlike the judgment of the court of appeal, even if it is not a ground of appeal, the court should nevertheless have assessed if there was an unfair term included in the rental agreement.

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

Relevant principles applied
  • Equivalence
  • Effectiveness
Principle of equivalence

The criteria of Directive 93/13/EEG should be treated as if they were principles of national public policy. This means they should be applied even if no ground of appeal to that extent was put forward by the appellant and even if this point was not addressed at the court of first instance. The Advocate-General even notes that treating these European provisions at being provisions of national public policy is self-evident when one keeps the principle of equivalence in mind (§3.19.1).

Principle of effectiveness

At the heart of the ex officio application of Directive 93/13/EEC lays the principle of effectiveness. Consumers should effectively be able to make use of the protection offered by this Directive. Normally, the court of appeal is allowed to only consider what has been put forward by the parties (exceptions such as provisions of public policy aside). This case makes clear that consumer protection directives op the EU should also be ex officio applied when the case has ended up at the court of appeal. This means the rights laid down in Directive 93/13/EEC can still be effective when they have not (correctly) been applied at the court of first instance.


Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
Cited CJEU
  • CJEU C-488/11, Asbeek Brusse
  • CJEU C-497/13, Faber
Dialogue techniques

The Supreme Court refers to a Court of Justice judgement, Asbeek/Brusse, as well as a Dutch judgement, Heesakker/Voets, containing extensive references to the case law of the EU Court of Justice (for both, see our ACTIONES templates). The latter judgement is a well-known case in which the Supreme Court ex officio assesses if there is speak of an unfair contract term. 
The Advocate-General also refers to CJEU Faber (C-497/13).

Horizontal Judicial Interaction: The Supreme Court assessed the judgment of the ’s-Hertogenbosch Court of Appeal in the same case, which it was required to do in cassation appeal.

Vertical Judicial Interaction: This case further elaborates on the ex officio application of European consumer protection directives that was stressed in the national judgement Heesakker/Voets. Heesakker/Voets, among other judgments, clarified the meaning of the European Court of Justice’s decision in Asbeek/Brusse for Dutch law.

Additional notes on the decision

Impact on national case law

In succeeding case law, courts of appeal have taken into consideration that they may go beyond the ground of appeal in order to ex officio apply Directive 93/13/EEC, as long as they do not go beyond the ambit of the legal dispute.

(See for example Court of Appeal of Amsterdam 1 March 2016, ECLI:NL:GHAMS:2016:768; Court of Appeal Arnhem-Leeuwarden, 22 March 2016, ECLI:NL:GHARL:2016:2316; Court of Appeal of ‘s-Hertogenbosch, 19 April 2016, ECLI:NL:GHSHE:2016:1512; Court of Appeal Arnhem-Leeuwarden 6 September 2016, ECLI:NL:GHARL:2016:7517; Court of Appeal ‘s-Hertogenbosch, 15 August 2017, ECLI: NL:GHSHE:2017:3615) 

External links

Case author

Fien de Ruiter, University of Amsterdam

Published by Gianmatteo Sabatino on 26 February 2018