Case summary

Deciding Body
High Court of Amsterdam
Gerechtshof Amsterdam
Netherlands
National case details
Date of decision: 05.03.19
Registration ID: 200.035.826/01
ECLI:NL:GHAMS:2019:657
Instance: Appellate on fact and law
Case status: Pending
Area of law
Consumer protection
Unfair terms
Consumer credit

Safeguards for access to justice
Right to an effective remedy before a tribunal
Relevant principles applied
Effectiveness
Preliminary ruling
Case C-229/19 Dexia Nederland BV

Life-cycle diagram

  1. 5 March 2019

    Referral to the CJEU by the High Court of Amsterdam

  2. 14 March 2019

    Lodge of the request for a preliminary ruling

Identification of the case

Fundamental rights involved
  • Right to an effective remedy and to a fair trial (art. 47 CFREU)
National law sources
  • Art. 1:88(1) BW
  • Art. 1:89(1) BW
  • Art. 7:907(1) BW
EU law sources
  • Directive 93/13

Summary of the case

Facts of the case

Dexia and the respondent have concluded two lease agreements. As the respondent failed to pay after repeated warnings, Dexia terminated the lease agreements on 6 June 2005. The lease agreements were for loans which Dexia subsequently invested in the stock market for which the respondent paid an annual interest rate of 12.4%. Whether the respondent earned, or lost money depended on the stocks appreciating more than 12.4% annually. The preliminary questions asked by the Court concern article 6 of the lease agreements in light of Directive 93/13. Article 6 of the lease agreements sets out the amount to be paid by the respondent to Dexia if the agreement is terminated. In a decision on 18 September 2018, the Dutch Supreme Court found that article 6 of the lease agreement must be regarded as an unfair term within the meaning of Directive 93/13. The applicable interest rates are thus determined by national law. The Supreme Court instructed all national judges to disapply article 6 of the lease agreement, regardless of whether this term is more favourable to the consumer than the applicable national law provision. Whether the term is more or less favourable to the consumer depends on the interest rate. The preliminary question asked by the Court concerns whether Directive 93/13 must be interpreted as meaning that a term which has the possibility of causing a significant imbalance between the consumer and the seller must be automatically be disapplied, even if this is to the detriment of the consumer.

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

Using the preliminary reference procedure to ask judicial questions to the CJEU.

Preliminary questions

Is Directive 93/13 to be interpreted as meaning that a clause must always be regarded as unfair if that clause, judging from all the circumstances surrounding the conclusion of the contract, including the mere possibility of a substantial imbalance depending on the circumstances that occur during the agreement; in particular because the clause fixes in advance a potential benefit that arises for the seller at the time of early termination of the agreement to a certain percentage of the remaining lease sum, contrary to the applicable rules of national law where that benefit is not fixed in advance but must be determined on the basis of the circumstances surrounding the termination of the agreement; particularly the level of the interest rate at which an amount received early during the remainder the duration can be extended?

Reasoning (legal principles applied)

Not available yet.

Implementation of preliminary ruling

Not available yet.

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

Relation to scope of the Charter

If a national judge is forced to apply national law provisions which are more detrimental to the consumer compared to a term the Supreme Court determined was an unfair term, the consumer does not have access to an effective remedy under Directive 93/13.

Safeguards for access to justice
  • Right to an effective remedy before a tribunal
Relevant principles applied
  • Effectiveness
Principle of effectiveness

The principle of effectiveness is key to this case. The Dutch Supreme Court found article 6 of the lease agreements between Dexia and consumers to be an unfair term within the meaning of Directive 93/13. The Supreme Court thus instructed national judges to automatically disapply this article and take recourse to the relevant national law provisions which determines the compensation. However, an issue arises when the consumer is worse off under the national law provisions, which is determined by the current interest rate. In order for Directive 93/13 to be effective, it needs to guarantee a higher level of consumer protection. It is clear that the Supreme Court’s interpretation of an unfair term under Directive 93/13 would allow a consumer to potentially be worse off under national law provisions. Article 7 of Directive 93/13 would not be effective if it allows the seller to claim higher compensation under national law provisions than it could under the unfair term.

Elements of judicial dialogue

Vertical dialogue type
  • Direct dialogue between CJEU and National court (preliminary reference)
Cited CJEU
  • CJEU C-421/14, Banco Primus
Dialogue techniques

Preliminary reference.

Purposes of using judicial dialogue

To resolve an issue of interpretation of EU law.

Expected effects of judicial dialogue

Judicial reform.

Additional notes on the decision

External links

Case author

Silvester van Kordelaar, University of Groningen

Published by Chiara Patera on 29 January 2020