In its judgment of 21 December 2016, C-119/15 (Biuro Podróży Partner), the Court of Justice of the EU addressed the question of whether a judgment declaring, in abstracto, a contract clause to be abusive can be effective against every business party who uses the same clause. The judgment comes after a resolution of the Supreme Court of Poland of 20 November 2015 (III CZP 17/15), dealing with almost the same issue of the ratione personae scope of a judicial declaration of abusiveness. Both judgments remain formally independent, but are obviously closely interconnected from the perspective of domestic law. The CJEU’s decision concludes a long dispute over the consequences of declaring a contract clause abusive in abstracto – which was reported on previously on “Polish Private Law”:
The background
The preliminary question was referred to the Court of Justice by the Court of Appeal in Warsaw in the case of Biuro Podróży Partner sp. z o.o. (Travel Agency “Partner” Ltd.) with its registered office in Dabrowa Górnicza. The question was asked on 19 November 2014 (i.e. before the inquiry to the Supreme Court, presented by its First President).
The case originated with a decision of the President of the Office of Competition and Consumer Protection (the OCCP) of 22 November 2011, imposing a penalty for applying a clause in a travel contract that was identical in content with a provision that had previously been declared abusive and entered into the public register (referred to in Article 47945 § 2 of the Code of Civil Procedure – CCP). The travel company brought an appeal to the Court of Competition and Consumer Protection (a division of the District Court in Warsaw), challenging the decision and demanding its total repeal or a reduction in the amount of the fine.
Apart from the issue of admissibility (not important for the proceedings in question), the Court of Appeal focused on the problem of the personal array of effects of decisions declaring contract clauses abusive. It led to the following question:
“In light of Article 6 paragraph 1 and Article 7 of Directive 93/13 with regards to Articles 1 and 2 of Directive 2009/22, can the use of standard contracts for content identical to the content of provisions deemed illegal by a final judgment of the court and entered in the register of standard contracts deemed illegal be considered as illegal in relation to another trader who was not involved in the proceedings finalised with the entry to the register of standard contracts, or illegal actions, constituting a practice of national law infringing collective consumer interests and forming the basis for imposing a fine on that account in the national administrative proceedings?”
The AG’s opinion and reasoning of the CJEU
In the opinion of 2 June 2016, Advocate General Henrik Saugmandsgaard Øetook the view that Directive 93/13, with reference to Articles 1 and 2 of Directive 2009/22 and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as against the national legislation providing for the imposition of a fine on a company that uses consumer contracts containing provisions of templates considered to be identical to provisions already recognised as unfair and entered in the register despite the fact that this company was not involved in the process leading to the conclusion of the unfair nature of the provisions contained in the register.
The Court stipulated, however, that this interpretation is acceptable, provided that: 1. The company is entitled to appeal against a decision finding a clause to be identical to a clause that has previously been found abusive – including the question of the identity of two clauses, especially in terms of harmful effects for consumers; 2. The company is entitled to appeal against a decision imposing a fine.
The Biuro Podróży Partner case versus the III CZP 17/15 resolution
The decision of the CJEU meets the halfway point with the theses of the Supreme Court of 20 November 2015, III CZP 17/15, according to which the legitimacy of a judgment declaring a provision of a standard contract illegal – even after entering this provision into the register – does not prevent a provision of the same content, used by a different company, from being recognised as illegal. The position expressed by the CJEU seems less clear and exhaustive than the thesis of the Supreme Court. On the one hand, the CJEU does not rule out the possibility of considering the registered abusive clauses as effective against a trader who was not a party to proceedings leading to the entry of those clauses into register. On the other hand, however, the judgment in the Biuro Podróży Partner case sets the conditions of such an interpretation so strictly that the practical meaning of the judgement is almost identical to the Supreme Court thesis. To sum up, the CJEU judgement ensures sufficient protection rights to a trader who was not a party to the proceedings resulting in a declaration of abusiveness (and the subsequent entry of the clause in the register). The same right – considered in a similar way – was also at the heart of the judgment of the Supreme Court.
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