ECJ C-240/98 — C-244/98, 27 June 2000, (Océano Grupo Editorial and Salvat Editores) Scottish Case Note

Abstract

The Océano Grupo Editorial is the first case referred to the European Court of Justice for a preliminary ruling regarding the interpretation of the Council Directive 93/13/EEC on unfair terms in consumer contracts (OJ 1993 L 95, p.29). The request for a preliminary ruling was made by a Court of First Instance in Barcelona. The proceedings before the Spanish Court concerned the payment of sums due under the sale contracts concluded between the companies (plaintiffs) and a number of buyers (defendants). Each of the defendants, who all were Spanish residents, had entered into a contract for the purchase by installments of an encyclopaedia for personal use. The contracts contained a term conferring jurisdiction on the courts in Barcelona, a city where the plaintiffs had their principal place of business but in which none of the defendants was domiciled. When the defendants did not pay the sums due on the agreed days, the sellers brought actions before the courts in Barcelona in accordance with the jurisdiction clauses. The judge of the Court of First Instance in Barcelona emphasized that the Tribunal Supremo has held jurisdiction clauses of the kind at issue to be unfair. However, the Court was less confident on the question — and therefore it addressed it to the ECJ — whether the scope of the Directive on unfair terms is such that the national court may determine of its own motion whether a term of a contract is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the courts. First, the ECJ regarded the jurisdiction clause of the kind at issue to be unfair within the meaning of article 3 of the Directive. Secondly, as to the aim of article 6 of the Directive, which requires Member States to lay down that unfair terms are not binding on the consumer, the ECJ argued that such aim would not be achieved if the consumer were himself obliged to raise the unfair nature of such terms. Thus, the ECJ held that the protection provided for consumers by the Directive on unfair terms entails the national court being able to determine of its own motion whether a term of a contract before it is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. In particular, the requirement for an interpretation in conformity with the Directive required the national court to favour the interpretation that would allow it to decline of its own motion the jurisdiction conferred on it by virtue of an unfair term. The case has also been reported in the Common Market Law Review, 38:719–737, 2001, with a note by Jules Stuyck.